X No. 12383
Gnited States
Court of Appeals
for the Ninth Circuit.
IVA IKUKO TOGURI wy &
he
UNITED STATES OF AMERICA,
Appellee.
Transcript of Record
In Two Volumes
Volume I
(Pages 1 to 462)
c eimmsaimenaisiemeniameeeeeedd
Appeal from the United States District Court,
Northern District of California, = - » r
Southern Division. J iL »
MAY 4 Ke
PAUL P, O'RRIEN, ~
Phillips G Van Orden Co., 870 Brannan Street, San Francisco, Calif.
No. 12383
Gnited States
Court of Appeals
for the Ninth Circuit.
IVA IKUKO TOGURI D’AQUINO,
Appellant,
vs.
UNITED STATES OF AMERICA,
Appellee.
Cranscript of Record
In Two Volumes
Volume I
(Pages 1 to 462)
Appeal from the United States District Court,
Northern District of California,
Southern Division.
Phillips & Van Orden Co., 870 Brannan Street, San Francisco, Calif.
INDEX
[Clerk’s Note: When deemed likely to be of an important nature,
errors or doubtful matters appearing in the original certified record
are printed literally in italic; and, likewise, cancelled matter appear-
ing in the original certified record is printed and cancelled herein
accordingly. When possible, an omission from the text is indicated by
printing in italic the two words between which the omission seems
to occur. |
PAGE
Affidavit of Iva Ikuko Toguri D’Aquino....... 331
Affidavit in Support of Motions............... 130
Affidavit in Support of Motions for Bail...... 11
Appeal:
Certificate of Clerk to Record on.......... 865
Designation of Additional Contents of Rec-
Cl Cl ne 864
Designation of Contents of Record on..... 854
JOY TUC EMO). AR 304
Notice of Motion for Admission of the De-
fenenieee Dail Pending............... O28
Order Dispensing With Payment of Fees
and Costs of Printing Record on........ 334
Stipulation and Order That Original Pa-
pers and Exhibits Be Transmitted to
Court of Appeals for Use on........... 863
Certificate of Clerk to Record on Appeal...... 865
Defendant’s Proposed Instructions....... 280, 290
Demand for Additional Bill of Particulars..... 47
i Iva Ikuko Toguri D’ Aquino
INDEX PAGE
Demand for Bill of Particulars.............. 35
Demand for Discovery and Inspection........ 40
Des@itition of Additional Contents of Record
OD PANO, es ee ee et eee ee 864
Designation of Contents of Record on Appeal.. 854
Exhibits, Defendant’s:
Murayama Deposition:
I—Letter Dated August 12, 1947.. 608
No. 2—Letter to Mr. Murayama...... 610
Pinto Deposition :
No. 1—Certificate of Consular Registry
IN OSSUR eran oh. es see 749
2—Marriage Certificate.......... 747
3—Record of Marriage........... 748
4Certificate of Registration..... ToL
Bh ATRICUARVEN, sc Sette ead nee tans « 752
6—Certificate of Consular Registry
No. 159) ce eee 753
8—Certificate of Consular Registry
INO. 190... 2a estas oc 7595
Exhibits, Government’s:
Pinto Deposition: -
J—Memorandum ................... Tol
Schenk Deposition:
J—Letter—Tokyo, 24 February 1949.. 534
vs. United States of America
INDEX PAGE
CC |
Judgment and Commitment..................
Memorandum on Behalf of U. S. in Opposi-
tion, Defendant’s Motions for a New Trial,
Judgment of Acquittal, and in Arrest of
2 LOT I, ne
Minute Orders:
October 11, 1948—Arraignment and Oral
Motion for Bail and Continuing Cause,
Hearing on Motion That Defendant Be
acamtwed: to bail... ..eiss). eae.
October 14, 1948—That Defendant’s Motion
for Bail Be Denied and Providing That
Marshal Provide Suitable Place of Con-
LUT CL Ae ee
January 3, 1949—Denying Motion for Bill
of Particulars, Motion to Dismiss Indict-
ment and Motion to Strike Indictment—
Motion for Discovery and Inspection Be
Granted as to Request No. 7 but Denied
as to Remaining Requests (Plea of
ee CICLO
March 14, 1949—Motion to Take Certain
Depositions Be Granted and That Re-
maining Motions Be Denied............
April 25, 1949—Authorizing Issuance and
Service of Subpoenas and Motion for
217
o4
114
164
iv Iva Ikuko Togurt D’ Aquino
INDEX PAGE
Minute Orders (Continued) :
List of Witnesses and Veniremen Be
Continued—Ordering. Case Be Con-
TUG a re...) 194.
June 20, 1949—Granting Motion for Ad-
Giieronial Hep enSeswmetc.... ... . uae «= 236
June 22, 1949—Quashing Subpoena Duces
Tecum Issued to Mr. DeWolfe.......... 245
August 12, 1949—That Oral Motion for
Judgment of Acquittal Be Continued to
Ameuste13, 1949... .... gee eee 247
August 18, 1949—Denying Defendant’s Mo-
tion for Judgment of Acquittal......... 248
September 19, 1949—Denying Motion to
Strike Certain Testimony; to Strike
U. 8. Exhibits Nos. 2 and 15; to Dismiss
Indictment; and Motion for Acquittal... 251
September 26, 1949—Court’s Instruction
to Jury; Aileen McNamara, Excused for
Further Service; Marshal Instructed to
Provide Meals and Lodging for J urors
end Marshals, etc.......252 =e ee 202
September 27, 1949—Re Portions of Tran-
seript and Exhibit Requested by and De-
limmened to JUTY, etc... 7.42 sae ae 254
September 29, 1949—Re Jury Requesting
and Receiving Certain Volumes of Testi-
vs. United States of America Vv
INDEX PAGE
Minute Orders (Continued) :
mony, and Further Instructions of the
Court; Jury’s Verdict and Special Find-
USS, CUCU en 295
October 6, 1949—Denying Motion for New
Trial, Motion for Acquittal or New Trial,
and Motion in Arrest of Judgment,
eS mEMC Ce, nia. a a. ee. OR... - 325
October 10, 1949—Denying Motion for Bail
eC HGMANe MMC Ae cekaiwie. cs.» « alive -, B28
Motion for Acquittal or New Trial............ 262
Motion for Arrest of Judgment............... 261
Monon tor Bill of Particulars................ a
lOO Ci. 98
Motion to Be Admitted to Bail............... 10
od GO: SA 9
Motion for Discovery and Inspection.......... 78
11 SE CILO Se en wi
Motion to Dismiss Indictment on Defenses and
Objections Capable of Determination With-
ou Vriabot General ilissue................. 86
OUCC, e 85
Motion to Dismiss Indictment................ al.
Exhibit A—Warrant of Arrest........... 67
vi Iva Ikuko Togurt D’ Aquino
INDEX PAGE
Motion for Lists of Witnesses and Venire-
TUES Aeeag 3 eRe eee ec ner ear 173, 225 ©
Nass Ci 17
iWotion tow New Trial...........06...c+eee.--- 264
Motion for Order Authorizing and Directing
Issuance of Service of Subpoenas Requiring
Attendance of Witnesses at the Trial Herein
at the Expense of the
Cron ernIMeN te wens. os - pages se 117, 175, 196, 214
INOiiGerOl ee. owes . aR ee INGs jae 195, Jie
Motion for Order for Production, Examination
and Inspection of Records and Scripts...... 249
Motion for Postponement of Time of Trial.... 193
DRINICOMOE 5s oss os ei as ae 192
Motion for Production of Documentary Evi-
PCy se ea ss he 2 ose icea sens ae 228
Pertelie TO sStriuke....). .. a 2. cece meee ol
IWOLICe@OL... 6.2 4 een 50
Motion for Supplemental Order Authorizing
Additional Subsistence Expenses to Be Paid
Defendant’s Counsel for Attending Examina-
tems or Witnesses......4.. ene 226
Names and Addresses of Attorneys........... 1
iNeeiee on ppeal............ so eae oe. - 334
Notice of Hearing Re Motions................ ait
us. Uiuted States of America
Vill
INDEX PAGE
Notice of Motion for Admission of the De-
fendant to Bail Pending Appeal............
Notice of Motion to Dismiss Indictment.......
SN IN a I ee be we
Order Denying Seven Motions and Granting
Defendant’s Motion for T'aking Depositions
Jinru TR, eek Seka en
Order Dispensing With Payment of Fees and
Costs of Printing Record on Appeal........
Order Granting Defendant’s Motions for Order
Authorizing and Directing Issuance and
Service of Subpoenas of Defendant’s Wit-
nesses at Trial Herein at the Expense of the
MROVOMMIMNGMIG 2.0 ow ec et eee ee 208,
Order Granting Motion for Supplemental Order
Authorizing Additional Subsistence Expenses
to Be Paid by the Government to Defendant’s
Counsel for Attending Examinations of Wit-
Wk 5S .gsb Book G Rita pap lee rr
“JOICIC.S 0! eg Ge
Order Releasing Reporter’s Transcript........
Order Requiring Plaintiff to Supply Defendant
With Lists of Veniremen and Witnesses.....
Order Staying lixecution................. Ba)
Points and Authorities in Support of Motion
Vo iee meeimnwed #O Ibagl.................24-
165
334
223
Zoo
234
862
237
862
viii Iva Ikuko Toguri D’ Aquino
INDEX PAGE
Points and Authorities in Support of Motion
ioe le (ht. ne 269
Points and Authorities in Support of Motion
SOEIS CETTE aa er rr Do
Special Findings by the Jury................. 258
Stipulation and Order That Original Papers
and Exhibits Be Transmitted to the U. S.
Court of Appeals for Use on Appeal........ 863
Stipulation to Taking Oral Designations Abroad 171
Suippoemeto Mestify.......am......0We.....- 238
Supplemental Authorities on Motion for New
Te a eae 276
Supplemental Ground in Support of Motion
Heretofore Filed for Acquittal or New Trial 275
PPOWCE feck on Se es ek oes 2 OE eee 260
Witnesses:
Depositions of:
(See Note Re Depositions)............. By) (1
Amamo, K. W.
—=(irect ... .. (( eae ee 815
SSCTOSS: .... . «5-0 eee a 821
— redirect... .... aaa. Sees. - 823
=eOcross. .... 2 Saree 824
Dumoulin, Heinrich |
= CHC OE 5 oo eh ac 7199
eerCE OSS. 6... 5 ei eeeaa eee ee 766
vs. Umted States of America 1x
INDEX PAGE
Witnesses— (Continued) :
Ghevenian, Lily
0 S00
—C lO 362
—Meitneet 2... PPI... 371, 373
Se 373
Hayakawa, Sumi Ruth
CSG: 378
0 er 389
—SMOOUME CH... suse twee. vues * 393, 394
Kido, Unami
—=@NMECCE ce ce ws tte eee dees 830
So 837
——POCITECE ........0Gba.. sc. eeee 840
Kodaira, Toshikatsu
SSO CCL ec ck eee ce 671
Matsui, Suisei
=GNOCE ow eee ee ee ee eee 614
——ONG@ES 2 es. ce SO ee ee ee 643
—=HOCUMN@CL .. 0.6 ccc cee cee ee eee 651
Murayama, Ken
(UO oe 845
—CMMES .ncue..... Pes oo ee 850
Murayama, ‘lamotsu
—— Ju 2 238
——} 0 O19
|. UL 602, 603
Iva [kuko Toguri D’ Aquino
INDEX
Witnesses—(Continued) :
Matsumiya, Kazuya
—direct ..... i. ec... oe
=O) eee
Nakashima, Leslie Satoru
—=(irect . gence a... ..
SS=CVOSs) ...2,.+.. 9
Noda, George
—direct ........ eee a
—CTOSS ....... eee
Okada, Katsuo
=a MOC... ad ape neeerree ee ee
—<CFOSS . .daae eee a
Ozasa, George
diet. ...04 ) eee
—CHOSS: ......... See eee
——CTOSS) 2.55605 ee ee ce oe
Saisho, Foumy
s=ainect....... Ae ee
SS=OnOSS ..... a eee ee
PAGE
vs. United States of America xi
INDEX PAGE
Witnesses— (Continued) :
—=MECITOGEGE .. 0... cc cece 412
0 412?
Schenk, Nicolas
Sui 464
—YCUPWSS we cc te ee 933
Tillitse, Lars Pedersen
—=4WMPCCE 25. ce cee ec e t aeae 806
SO 810
—=@NCGD fn ec ce eae 417
NAMES AND ADDRESSES OF ATTORNEYS
WAYNE M. COLLINS, ESQ.,
GEORGE OLSHAUSEN, ESQ.,
THEODORE TAMBA, ESQ.,
1701 Mills Building,
San Francisco, California,
Attorneys for Defendant and Appellant.
FRANK J. HENNESSY, ESQ.,
United States Attorney,
Northern District of California,
Post Office Building,
San Francisco, California.
TOM DE WOLFE, ESQ.,
JAMES KNAPP, ESQ.,
Special Assistants to the United States
Attorney General,
Attorneys for the Plaintiff and Appellee.
2 Iva Ikuko Toguri D’ Aquino
In the Southern Division of the United States
District Court, for the Northern District of
California.
No. 31712-R
UNITED STATES OF AMERICA,
Plaintiff,
VS.
IVA IKUKO TOGURI D’AQUINO,
Defendant.
INDICTMENT
Treason (Title 18 U.S.C., See. 1)
The Grand Jurors for the United States of Amer-
ica duly impaneled and sworn in the Southern Divi-
sion of the United States District Court for the
Northern District of California and inquiring in
and for that District and Division, upon their oaths
present:
1. That Iva Ikuko Toguri D’Aquino, whose full
and true name is to said Grand Jurors unknown,
other than as hereinabove stated, hereinafter called
‘‘said defendant,’’ was born in Los Angeles County,
California, on July 4, 1916, and she has been at all
times herein mentioned and is now a citizen of the
United States of America and a person owing alle-
giance to the United States of America.
2. That said defendant, at Tokyo, Japan, and
other places within the Empire of Japan, and out-
vs. United States of America 3
side the jurisdiction of any particular state and
district of the United States, continuously and at
all times beginning on or about the Ist day of No-
vember, 1943, and continuing thereafter up to and
including the 18th day of August, 1945, under the
circumstances and conditions and in the manner
and by the means hereinafter set forth, she then
and there being a citizen of the United States and
a person owing allegiance to the United States, in
violation of said duty of allegiance, did knowingly,
wilfully, unlawfully, feloniously, intentionally, trai-
torously and treasonably adhere to the enemies of
the United States, and more particularly, to wit, the
Imperial Japanese Government, with which the
United States at all times since December 8, 1941,
and during the times set forth in this indictment,
has been at war, and the Broadcasting Corporation
of Japan and the officials and employees thereof,
giving to the said enemies of the United States aid
and comfort within the United States, Japan and
elsewhere, that is to say:
3. That the aforesaid adherence of said defend-
ant and the giving of aid and comfort by her to
the aforesaid enemies of the United States during
the period aforesaid consisted :
(a) Of working as a radio speaker, radio an-
nouncer, radio script writer, and as a broadcaster
of recorded music in the short wave radio broad-
casting station of the Broadcasting Corporation of
Japan, a company controlled by the Imperial Jap-
anese Government, which work included the prepa-
4 Iva Ikuko Togurt D’ Aquino
ration and composition of radio scripts, talks and
announcements, the announcing of the same, and the
announcing and introduction of musical recordings
and talks for broadcast by radio from Japan to
members of the armed forces of the United States
and their allies in the Pacific Ocean area, and to
people elsewhere.
(b) Of working as a composer and organizer
of radio broadcasting programs for subsequent
broadcast by radio from Japan to members of the
armed forces of the United States and their Allies
in the Pacific Ocean area and to people elsewhere.
That the aforesaid activities of said defendant
were intended to destroy confidence in the war effort
of the United States and its Allies, to undermine
and lower American and Allied military morale,
to create nostalgia in the minds of the American
and Allied armed forces, to create war weariness
among members of the American and Allied armed
forces, to discourage members of the American and
Allied armed forces, and to impair the capacity of
the United States to wage war against its enemies.
4. And the Grand Jurors aforesaid upon their
oaths aforesaid do further present that said de-
fendant, in the prosecution, performance and execu-
tion of said treason and of said unlawful, traitor-
ous and treasonable adhering and giving aid and
eomfort to the enemies of the United States as
aforesaid, at the several times hereinafter set forth
in the specifications hereof (being times when the
United States was at war with the Imperial Jap-
vs. United States of America 4)
anese Government), did knowingly, wilfully, unlaw-
fully, feloniously, traitorously and treasonably and
with treasonable intent in her to adhere to and give
aid and comfort to said enemies, perform, do and
commit certain overt and manifest acts which gave
aid and comfort to said enemies, that is to say:
1. That on a day between March 1, 1944, and
May 1, 1944, the exact date being to the Grand
Jurors unknown, said defendant, at Tokyo, Japan,
in the offices of the Broadcasting Corporation of
Japan, did discuss with another person the pro-
posed participation of said defendant in a radio
broadcasting program.
2. That on a day between March 1, 1944, and
June 1, 1944, the exact date being to the Grand
Jurors unknown, said defendant, at Tokyo, Japan,
in the offices of the Broadcasting Corporation of
Japan, did discuss with employees of said corpora-
tion the nature and quality of a specific proposed
radio broadeast.
3. That on a day between March 1, 1944, and
June 1, 1944, the exact date being to the Grand Jur-
ors unknown, said defendant, at Tokyo, Japan, in
a studio of the Broadcasting Corporation of Ja-
pan, did speak into a microphone regarding the in-
troduction of a program dealing with a motion pic-
ture involving war.
4. That on a date between August 1, 1944, and
December 1, 1944, the exact date being to the Grand
Jurors unknown, said defendant, at Tokyo, Japan,
6 Iva Ikuko Toguri D’ Aquino
did speak into a microphone in a studio of the
Broadcasting Corporation of Japan referring to
enemies of Japan.
o. That on a day during October, 1944, the ex-
act date being to the Grand Jurors unknown, said
defendant, at Tokyo, Japan, in the offices of the
‘Broadcasting Corporation of Japan, did prepare a
script for subsequent radio broadcast concerning the
loss of ships.
6. That on a day during October, 1944, the ex-
act date being to the Grand Jurors unknown, said
defendant, at Tokyo, Japan, in a broadcasting stu-
dio of the Broadcasting Corporation of Japan, did
speak into a microphone concerning the loss of
ships.
7. That on or about May 23, 1945, the exact date
being to the Grand Jurors unknown, said defend-
ant, at Tokyo, Japan, in the offices of the Broad-
casting Corporation of Japan, did prepare a radio
script for subsequent broadcast. |
8. That on a day between May 1, 1945, and July
31, 1945, the exact date being to the Grand Jurors
unknown, said defendant, at Tokyo, Japan, did
speak into a microphone in a studio of the Broad-
casting Corporation of Japan, and did then and
there engage in an entertainment dialogue with
an employee of the Broadcasting Corporation of
Japan for: radio broadcast purposes.
That said defendant committed each and every
one of the overt acts herein described with trea-
us. Umted States of America 7
sonable intent and for the purpose of, and with
the intent in her to adhere to and give aid and
comfort to the Imperial Japanese Government, and
to the Broadcasting Corporation of Japan and the
officials and employees thereof, enemies of the
United States, and said defendant committed each
and every one of said overt acts contrary to her
duty of allegiance to the United States and to the
form of the statute and Constitution in such case
made and provided, and against the peace and dig-
nity of the United States.
That the Northern District of California was
the Federal Judicial District into which the de-
fendant was first brought shortly prior to the date
of the return of this indictment.
A True Bull.
/s/ JOHN P. JONES,
Foreman.
/s/ FRANK J. HENNESSY,
U.S. Attorney,
/s/ TOM DE WOLFE,
/s/ JOHN B. HOGAN,
Special Assistants to the
Attorney General.
Presented in open court and ordered Filed.
[Endorsed]: Filed October 8, 1948.
8 Iva Ikuko Toguri D’ Aquino
District Court of the United States, Northern
District of California, Southern Division
At a Stated Term of the District Court of the
United States for the Northern District of Cali-
fornia, Southern Division, held at the Court Room
thereof, in the City and County of San Francisco,
on Monday, the 11th day of October, in the year of
our Lord one thousand nine hundred and forty-
eight.
Present: The Honorable Louis E. Goodman,
District Judge, Sitting for and on Behalf
of Honorable Michael J. Roche, District
Judge.
[ Title of Cause. |
(Minute Order Entry on Arraignment and
Oral Motion for Bail and Continuing Cause
to Oct. 14 at 1:00 P.M. for Hearing on Motion
that Defendant Be Admitted to Bail.)
Now comes the United States Marshal and pro-
duced the defendant, Iva Ikuko Toguri D’Aquino,
in open Court pursuant to provisions of bench
warrant heretofore issued. Wayne Collins, Esq.,
appeared as attorney for defendant. Tom De
Wolfe, Esq., Special Assistant to the Attorney Gen-
eral, and Hon. Frank J. Hennessy, United States
Attorney, were present for the United States.
On motion of Mr. Hennessy, the defendant was
called for arraignment. The defendant was duly
informed of the return of the Indictment by the
us. United States of America S)
United States Grand Jury for the Northern Dis-
trict of California, at San Francisco, charging
defendant with violation of Title 18 U.S.C., See. 1,
(treason). The defendant was asked if she was
the person named therein, and upon her answer
that she was and that her true name was as charged,
thereupon Mr. Collins waived her reading of the
Indictment and copy thereof was handed to her.
The defendant stated that she understood the charge
against her.
Mr. Collins made an oral motion that the de-
fendant be admitted to bail.
Ordered that this case be continued to October
25, 1948, to plead; and October 14, 1948, at 1 p.m.,
for hearing of motion that defendant be admitted
to bail.
Further ordered that the defendant be admitted
to the custody of the United States Marshal.
[Title of District Court and Cause. ]
NOTICE OF MOTION
To Frank J. Hennessy, U. 8. Attorney, Attorney
for Plaintiff:
You will please take notice that, by order of this
Court duly made and entered on October 11, 1948,
the defendant’s oral motion made in open court on
said date to be admitted to bail, which said motion
defendant’s counsel then and there stated would
10 Iva Ikuko Toguri D’ Aquino
be followed by the filing of a formal written mo-
tion therefor, copy of which is attached hereto, by
an order of said court duly made on said date was
set for hearing and argument before the said Court,
Hon. Louis E. Goodman, presiding, for Thursday,
October 14, 1948, at the hour of 1 o’clock p.m.
of said day.
s/ WAYNE M. COLLINS,
Attorney for Defendant.
[Title of District Court and Cause. |
MOTION TO BE ADMITTED TO BAIL
Defendant moves the Court, under Title 18
USCA, Sec. 597, and Rule 46 (a) of the Rules of
Criminal Procedure for the District Courts of the
United States, to be admitted to bail.
This motion will be made on the oral motion
heretofore made, the pleadings herein, this motion,
notice thereof, affidavit and points and authori-
ties in support thereof.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
Receipt of a copy of the above motion, notice
thereof, affidavit and points and authorities in sup-
port thereof, are admitted this 15th day of Octo-
ber, 1948.
/s/ FRANK J. HENNESSY,
Attorney for Plaintiff.
vs. Umted States of America 11
AFFIDAVIT IN SUPPORT OF MOTION
FOR BAIL
The defendant, Iva Ikuko Toguri D’Aquino, an
adult female, now resides and continuously ever
since about July 25, 1941, has resided in Tokyo,
Japan, and, on April 19, 1945, there was lawfully
united in marriage to one, Felipe J. D’Aquino, a
national and citizen of Portugal and resident in
Tokyo, Japan, according to the rites of the Ro-
man Catholic faith, by Father John Baptiste Kraus,
a duly ordained priest of the Jesuit Order of
the Roman Catholic Church, at Sophia Univer-
sity Chapel in Tokyo, Japan, and she thereby and
thereupon, pursuant to the law of Portugal, as also
the law of Japan, as also by the law of all other
civilized nations and by international law, became
and ever since then continuously has been and now
is a national and citizen of Portugal and as such
within the exclusive lawful jurisdiction of the Gov-
ernment of Portugal while resident in Japan and,
as such a foreigner lawfully residing in ‘T'okvo,
Japan, was and is entitled to the protection of the
laws of Japan, and was at all of said times and
now is without the lawful jurisdiction of the United
States; that by reason of the foregoing, at all times
since her said marriage, which ever since has been
and now is in full force and effect, she continuously
has been and now is a bona fide resident of Ja-
pan, residing therein at 396 Ikejiri Machi, Seta-
gaya-Ku, Tokyo, with her said husband, and a
domiciliary, national and citizen of Portugal.
12 Iva Ikuko Toguri D’ Aquino
While so residing with her husband in Tokyo, as
aforesaid, defendant forcibly was seized by agents ©
of the United States, without legal authority or
jurisdiction, at Yokohama, Japan, and was _ sub-
jected to arrest, detention and questioning on or
about September 5th and 6th, 1945, and thereafter
was released on said September 6, 1945.
While so residing with her husband in Tokyo,
as aforesaid, defendant forcibly was seized by agents
of the United States, whom affiant is informed and
believes were acting under the orders of the At-
torney General of the United States, on October
17, 1945, and was taken, by them, from her said
home and husband and confined to the Yokohama
Prison in Yokohama, Japan, where she was held
until November 16, 1945, when she was transferred
to Sugamo Prison in Tokyo, Japan, where she
remained until she was released therefrom by said
authorities on October 25, 1946. While so detained
and imprisoned she was, for approximately three
months, held incommunicado by said authorities
from her husband and visitors and without being
afforded any opportunity whatever to obtain coun-
sel or the assistance of any friend. The said ar-
rest and imprisonment were wholly without author-
ity of law and without valid process having issued
therefor.
Thereafter, on August 26, 1948, defendant again
was forcibly and unlawfully seized and arrested by
agents of the United States, acting under orders
of the Attorney General of the United States, with-
us. Umted States of America 13
out any notice thereof being given by any of them
or by the United States to the Government of
Portugal, or to any of its diplomatic or consular
officers, albeit they knew she and her said husband
both were nationals and citizens of Portugal; and
thereupon said agents, so acting under said orders,
took her into custody, albeit without lawful right,
sanction, jurisdiction, authority or process there-
for, and imprisoned her in the said Sugamo Prison
in Tokyo, Japan, and thereafter, by agents of the
United States, was forcibly taken aboard the SS.
General I’. H. Hodges, a United States transport
vessel, in Yokohama Harbor, in custody of said
agents, and said vessel thereafter sailed therefrom
to the harbor of San Francisco, California; when
and while said vessel, on September 25, 1948, there
was in progress of docking, the defendant was
seized aboard said vessel by agents of the U. S.
Federal Bureau of Investigation, one of whom was
Fred Tillman, a special agent, F'.B.L., the names of
the four or five others being unknown to affiant,
upon a purported warrant of arrest issued upon a
complaint filed in this Court on September 25,
1948, being numbered and entitled Commissioners’
Docket No. 11, Case No. 5136, affiant being of the
opinion said purported warrant issued and _ said
complaint was filed before said vessel docked, as
aforesaid; that, thereupon, defendant was brought
before United States Commissioner Francis J. Fox
in the Post Office Building, San Francisco, Cali-
fornia, where, on her arrival at approximately
14 Iva Ikuko Toguri D’ Aquino
11:40 a.m., in custody, defendant formally was ar-
rested by Hon. George Vice, U. 8. Marshal for this
District, and thereupon, said Commissioner ordered
defendant into the custody of said Marshal and
continued her hearing on said complaint to Octo-
ber 7, 1948, affiant then and there appearing as
counsel for defendant; thereafter, on said October
7, 1948, said hearing was continued to October 14,
1948, with the consent of affiant, defendant’s coun-
sel, in order to enable the grand jury for this dis-
trict to complete its inquiry into said matter.
On September 25, 1948, affiant was conferring
with his chent, the defendant, at her place of de-
tention under the aforesaid order of said Commis-
sioner, to wit, County Jail No. 3, Dunbar and Wash-
ington Streets, San Francisco, California, at ap-
proximately 3:30 p.m., when he was informed by the
matron in charge of said jail that he would have
to leave because a deputy U. 8. Marshal was com-
ing to take her to the U. S. Marshal’s office in the
Post Office Building, San Francisco, and it was
necessary for defendant to change from prison to
civilian garb. That affiant protested said interfer-
ence with the privileged conference between affi-
ant and defendant and thereupon left said jail and
was admitted to the office of County Jail No. 2 in
the same building where he telephoned Market
1-2500 and asked the operator at said number to
connect him with the U. 8S. Marshal’s office and
thereafter was informed by her that there was no
answer to her ring and thereupon affiant requested
us. United States of America 15
her to ring the U. 8S. Attorney’s office and the tele-
phone of Thomas DeWolfe and John Hogan, Esas.,
Special Assistant Attorney’s General in that office
and thereafter was informed that none of said tele-
phones answered her rings and that the Marshal’s
and U. S. Attorney’s offices were closed as it was
Saturday afternoon;
Thereupon affiant returned to the corridor out-
side County Jail No. 3 where defendant was lodged
and waited and at approximately 3:55 p.m. Dep-
uty Marshal James Eagan appeared, was admitted
to said jail and emerged with defendant in his cus-
tody. I joined them and we entered an automo-
bile of the Federal Bureau of Investigation driven
by John Eldon Dunn, special agent of that bureau,
who drove us to the Federal Office Building, San
Francisco, where we entered the office of that Bu-
reau and there agents of that Bureau, acting under
the orders of the aforesaid Thomas DeWolfe and
John Hogan, holding defendant in duress and sub-
~ jecting her to duress, over her and my protests,
secretly attempted to question her in a room from
which affiant was excluded. Thereafter, on Monday,
September 27, 1948, affiant filed a formal protest
with said Commissioner, Marshal, Special Assist-
ant Attorneys General, agents of the said Bureau,
and others, a copy of said written protest being
attached hereto and incorporated herein.
The defendant is an indigent; aside from used
clothing and a few personal effects, the reasonable
value of which does not exceed $25.00, she pos-
16 Iva Ikuko Togurt D’ Aquino
sesses the following assets only, viz., the equiva-
lent of approximately $100 in Japanese yen which
is on deposit on the Postal Savings Bank in To-
kyo, and a remote claim of right, subservient to
the right of the Alien Property Custodian, in and
to certain real property situated in Los Angeles
County, California, which property has an approxi-
mate value of $3,500, the interest of defendant .
therein, however, being at most a disputable claim
and hence of substantially no value.
Defendant is a person of good moral character
and has not heretofore been accused of any crime.
It will be necessary for affiant, In preparing the
defense of defendant, to interview witnesses, whose
number may exceed one hundred (100) persons; it
will be necessary for counsel to confer with defend-
ant in connection with each such witness to be in-
terviewed; it is essential to her said defense that
defendant personally see each witness and talk to
each such witness in the presence of her counsel;
such interviews are impossible while defendant is
detained in said County Jail No. 3, by reason of the
fact she there is held incommunicado from all per-
sons except her father, sister and affiant; no per-
son other than counsel is there permitted to visit
and see defendant face to face; defendant’s father
and sister there are not permitted to see her fea-
tures nor could any of her witnesses by reason
of the fact that were they to be allowed to visit
her they could speak to her only through double
vs. United States of America 17
iron mesh wires which obscures and prevents the
visibility of defendant and such persons; the closed
section of the room there reserved for counsel to
interview clients is tiny, encased in glass, lacks
ventilation, and counsel and client are separated
by a bench-like desk and a partition of glass ap-
proximately two and one-half feet high mounted
thereon, all of which render consultations difficult;
By reason of the fact she is detained in said
County Jail No. 3 where at all hours of the night
arrested women are incarcerated and make noise,
it is practically impossible for defendant to obtain
restful sleep, by reason of which she grows in-
creasingly nervous and ill while under tension. De-
fendant is frail and weighs approximately 110
pounds. On January 5, 1948, she lost her baby at
birth. She suffers from recurrent arthritis.
There is no danger that defendant, if admitted
to reasonable bail, will depart from the jurisdic-
tion of the court; defendant and her counsel are
willing, if the court sees fit so to provide that she
be required to report periodically to the court or
any agent who may be designated by the court,
pending the final outcome of the cause.
/s/ WAYNE M. COLLINS,
Affiant.
Subseribed and sworn to before me this thir-
teenth day of October, 1948.
/s/ JANE M. DAUGHERTY,
18 Iva Ikuko Toguri D’ Aquino
Notary Public in and for the City and County of
San Francisco, State of California.
Wayne M. Collins
Attorney at Law
Mills Tower, 220 Bush Street
San Francisco 4, California
Garfield 1-1218
September 27, 1948.
Hon. Francis J. Fox, U. S. Commissioner, San
Franeisco, Calif.
Hon. George Vice, U. S. Marshal, San Francisco,
Calif.
Hon. Tom C. Clark, U. 8. Attorney General, Wash-
meron, 1). C.
John Hogan, Special Asst. Attorney General, San
Francisco, Calif.
Thomas De Wolfe, Special Asst. Attorney General,
San Francisco, Calif.
H. M. Kimball, Agent in Charge, U. S. F.B.I., San
Francisco, Calif.
John Eldon Dunn, Special Agent, F.B.I., San Fran-
cisco, Calif.
Fred Tillman, Special Agent, F.B.I., San Fran-
cisco, Calif.
William Simon, Special Agent, F.B.IL, San Fran-
cisco, Calif.
us. Uited States of America 19
R. C. Kopriva, Special Agent, F.B.I., San Fran-
cisco, Calif.
Gentlemen:
Re: U. 8S. v. Iva Toguri D’Aquino, Com.
Docket No. 11, Case No. 5136.
U. 8. District Court, Northern District of
California, Southern Division.
On last Saturday morning, September 25, 1948,
near noon, I appeared as counsel for Mrs. Iva To-
guri D’Aquino at her arraignment before U. S.
Commissioner Francis J. Fox on a purported charge
of a violation of Title 18, U. S. Code, See. 1, on a
complaint, wholly insufficient on its face for fail-
ing to state a public offense, filed by John Eldon
Dunn, special agent of the F.B.I., in the U. S.
District Court for the Northern District of Cali-
fornia, Southern Division. During the course of
that proceeding I orally and openly instructed Mrs.
D’ Aquino, my client, not to talk to or discuss the
charges therein contained with any officers, agents,
representatives, servants or employees of the U. S.
Government or any other person or persons and not
to make any verbal or written statement to any
such person or persons and not to answer any
questions that might be put to her by any such
person or persons without first consulting me.
Thereafter, near the close of said proceeding, I
orally requested the said Commissioner to inform
me where my client was to be taken at the close
20 Iva Ikuko Toguri D’ Aquino
of the proceeding and he.informed me that she was
in custody of the U. S. Marshal and would be
taken by the U. S. Marshal to his office in the
Post Office Building from whence she would be
taken to San Francisco County Jail No. 3. The
Hon. George Vice, U. S. Marshal, then and there
orally confirmed that statement to me. Thereupon
I asked whether she was to be taken from his
custody to the office of the F.B.I. for questioning
purposes, inasmuch as I had heard a statement from
someone in the hearing room that such a purpose
was intended, and was answered that she would
not so be taken. Thereupon, I orally informed those
present that I protested against any removal of my
client from said custody and protested against any
intended taking of her to any office of the F.B.I.
or before any agent or agents of the F.B.I. or
any other governmental officers or agencies for any
purposes whatsoever without judicial process there-
on first issuing and without advance notice to me
and thereupon I stated to the agents of the U. S.
then and there present that my client would not dis-
cuss the case or charges with any officer, agent, or
employee of the Government and asked them not to
seek so to do. The Hon. Francis J. Fox, U. 8S. Com-
missioner, the Hon. George Vice, U. 8. Marshal,
Thomas De Wolfe, attorney and Special Assistant
Attorney General, and John Eldon Dunn, special
agent of the F.B.I., among other governmental of-
ficers and agents, were present at said time and
place.
vs. Umited States of America 21
Thereafter my said client was escorted to the
U. 8. Marshal’s office in the Post Office Building
and, shortly thereafter, was escorted by U.S. Dep-
uty Marshal, by automobile, to S. F. County Jail
No. 3, where she was confined without bail by or-
der of U. S. Commissioner Francis J. Fox.
Thereafter, at about 2:40 p.m. of said day, I went
to said Jail and was admitted to confer with my
client. My conference with my client was inter-
rupted at approximately 3:30 p.m. by the matron-
in-charge who informed me she had just received
a telephone call from the U. S. Marshal’s office that
a deputy marshal was coming 1n an automobile to
take my client to the U. 8. Marshal’s office and that,
for said reason, my conference would have to be
terminated because she had to arrange for Mrs.
D’Aquino to change from her prison garb to civilian
clothes for that purpose and, although I orally pro-
tested on the ground the Marshal’s office was closed
on Saturday afternoon and that no right existed to
remove her from the jail without being so author-
ized by judicial process, for any examination pur-
poses whatsoever and that no such process had or
could have been issued Saturday afternoon because
the courts were closed and no notice had been given
to me of any such intended removal for such pur-
poses and that any such removal was unauthorized
and violative of my clent’s rights, she informed
me she was acting under orders and would obey
those orders. Thereupon I was escorted to the door
and then took the elevator to the next floor, County
22 Iva Ikuko Toguri D’ Aquino
Jail No. 2, where I was permitted to enter and
there telephoned Market 1-2500 and asked the op-
erator to connect me with the U. S. Marshal’s of-
fice. The telephone operator informed me that she
tried to ring his office, that there was no answer,
that the Marshal’s office was closed Saturday after-
noon. I requested her to connect me with the U.S.
Attorney’s office and she thereafter informed me
that she had rung there and received no answer.
Thereupon I requested her to ring the telephone of
Mr. John Hogan and Mr. Thomas De Wolfe, Spe-
cial Assistant Attorneys General, and thereafter
she told me that neither of them answered her
rings. Thereupon I returned to the 3rd Floor of
that building and waited in the corridor outside
County Jail No. 3 for the arrival of the U. S. Dep-
uty Marshal.
At approximately 3:55 p.m. on said Saturday,
James Eagan, Deputy U.S. Marshal, appeared and
gained admittance to that Jail. My client there-
upon was delivered over to him and I accompanied
them down the elevator, through the courtyard and
the alley leading north to Washington Street to
a parked dark (FBI) sedan in which John Eldon
Dunn, special agent of the F’.B.L., was sitting in
the rear seat. Thereupon Mr. Eagan entered the
car and sat in the front seat. Mr. Dunn thereupon
drove east on Washington Street and turned and
drove south on Montgomery Street, and parked at
the curb in front of the northern end of the Com-
mercial Union Building, 315 Montgomery, to leave
vs. United States of America 23
the car, as he said at the time to buy some cigar-
ettes in the Pacific National Bank Building lobby.
He returned in about four minutes without, how-
ever, exhibiting any such purchase, and thereupon
drove the car to the main center entrance of the
Federal Office Building in San Francisco and
parked the car near that entrance. Thereupon we
entered that building, took the elevator to the 4th
Floor and entered the office of the F’.B.I. where
Mrs. D’Aquino and I were invited to be seated in
the reception room.
Thereupon Mr. R. C. Kopriva of the F.B.I. in-
formed me that Mrs. D’Aquino had been brought
there for questioning. I asked him who had or-
dered her brought there and who the persons were
who intended to question her. He informed me he
was not permitted to inform me of these matters. I
told him that I had instructed my chent not to an-
swer any questions whatever for any person whom-
soever and then and there told her that I advised
her not to answer any questions whatever, upon
my advice, and she stated she would rely upon my
advice. I then informed him orally that she would
not answer any questions or talk to anyone about
the case, that the seizure of my client from the
County Jail No. 3 was highly improper; that the
seizure had interrupted a conference I then was
having with her; that she was in the custody of the
©. 8. Marshal, an adjunct of the U. 8S. District
Court, and not in that of the Special Assist-
ant Attorneys General, the F.B.1., or of any other
24 Iva Ikuko Toguri D’ Aquino
U.S. officers, agents or agency; that it was an un-
warranted interference by executive officers with
the judicial branch of the U. S. Government; that
JI had not been notified in advance by any of them
or anyone of her intended removal from the said
jail for interrogation purposes or of any questions
that were to be put to her; that their conduct in
removing her from that jail to the office of the
F'.B.I. was an interference with the privileged rela-
tionship of client and attorney existing between
Mrs. D’Aquino and me and an unlawful and out-
rageous interference with her constitutional rights;
that I would not willingly, nor would she, as my
elient, willingly submit to any questioning or ex-
amination by agents of the F.B.I. or by Thomas
De Wolfe or John Hogan, Special Assistant Attor-
neys General, or by any other officers or agents of
the Government, except under protest and under
duress; that the attempt, since I was informed by
Mr. R. C. Kopriva and Mr. William Simon of the
F.B.I. that said persons chiefly were responsible
therefor, was a deliberate violation of the Fourth,
Fifth and Sixth Amendments of the U. 8. Consti-
tution and also a violation of legal ethics and of the
rules of courtesy existing between adverse counsel
not to subject another lawyer’s client.to the indig-
nity of examination in an adversary proceeding
without my knowledge or consent, and without a re-
quest and notice first being given and that they
were duty bound to proceed in an orderly legal
fashion and not violate the ethics of the legal pro-
vs. Umted States of America 25
fession which are binding upon attorneys whether
they are governmental attorneys or not. My client,
upon my instructions, thereupon stated to Mr. Ko-
priva that, upon my advice, she would decline to an-
swer any questions.
Thereupon, Mr. Kopriva said he would talk to
the agents interested, left the room and returned
and said the agents, whose names he refused to re-
veal to me, wanted her taken into their office for
five (5) minutes, that she would be taken there and
that I could not accompany her. I stated she would
not go willingly but only under duress and under
protest and would decline to answer any questions
that might be put to her. At my request Mrs.
D’Aquino repeated this statement to him. Mrs.
D’Aquino thereupon was taken by him into an
office down the corridor leading from the recep-
tion room and about three minutes later was re-
turned by him and requested to be seated in a chair
next to me. She stated to me in his presence that
she had been taken into a room where William
Tillman and John Eldon Dunn, agents of the F.B.L.,
and a stenographer were present and that she in-
formed them that, upon my advice as her counsel,
she declined to answer any questions and, although
they propounded questions to her, she declined to
answer, upon my advice, and thereupon had been
returned to the reception room.
Mr. Simon thereupon said to me that the F.B.I.
was obeving its orders in the matter, i.e., the or-
26 Iva Ikuko Togurt D’ Aquino
ders of said John Hogan and Thomas De Wolfe,
Special Assistant Attorneys General. I repeated
my protests to him. I stated to him and Mr. Ko-
priva that those who were guilty of having ordered
my client removed from County Jail No. 3 and
brought to the F.B.I. office for questioning with-
out judicial process having issued thereon and with-
out notice to me were violations of my client’s con-
stitutional and statutory rights; that it was an
executive interference with the judicial branch of
government and a usurpation of judicial power;
that it was a breach of legal ethics by the persons
responsible for and participating therein, or for
ordering said things to be done if they were attor-
neys, and a breach of the ordinary rules of cour-
tesy to which adversary counsel is entitled and that
all those guilty and responsible for this misconduct
had engaged in vicious reprehensible conduct. I
informed him and Mr. Kopriva that I would make
an issue of the matter and that if there were any
further attempts on the part of any officers, lawyers
or agents of the Government that I would make an
issue of each violation in open court.
Thereupon Mr. Dunn, Mr. Eagan, my client and
I left the room and got into Mr. Dunn’s car and
were driven down town where I got out at Kearny
and Bush Streets and my client thereafter was
returned to County Jail No. 3.
Thereafter, upon reaching my office, 1701 Mills
Tower, San Francisco, I telephoned Market 1-2500
vs. Umted States of America 27
and the operator connected me with the telephone
of said Thomas De Wolfe. He answered my eall
and I repeated the aforesaid occurrence to him
and asked him why my client had been seized and
removed under his and Mr. Hogan’s instructions,
in manner as aforesaid, and at the outset he stated
he did not wish to discuss the matter with adverse
counsel on the telephone or to make any commit-
ments in the matter unless he had a colleague with
him, that he would not promise that such actions
would not continue. Because of his reluctance to
discuss the matter over the telephone I informed
him that I would call upon him and Mr. Hogan
Monday, September 27, 1948, and that I would make
an issue out of this outrageous conduct.
J protest, condemn and censure that forced seiz-
ure and removal of my client from County Jail No.
3 as a prohibited. violation of the Fourth Amend-
ment of the U. S. Constitution. I protest, con-
demn and censure that forced seizure and removal
from that jail to.the office of the F.B.I. as a willful,
deliberate, wrongful and unauthorized interference
by the said executive officers and agents with the
judicial power of the U. 8. District Court for the
Northern District of California, Southern Division,
in the absence of judicial process having issued
thereon for any such purpose; I protest, condemn
and censure that unlawful seizure and removal of
my client to the office of the F.B.I. by said agents
and agencies for secret questioning by them, with-
out advance and formal notice to me and without
28 Iva Ikuko Toguri D’ Aquino
judicial process having issued thereon, as a direct
and deliberate violation of her constitutional right
not to be compelled to act as a witness against her-
self on the purported charge brought against her
and as a violation of her constitutional rights se-
eured to her by the provisions of the Fifth Amend-
ment of the U. S. Constitution. I protest, condemn
and censure that unlawful seizure and removal for
secret questioning as a violation of the code of
legal ethics by which attorneys, even attorneys for
the U. 8S. Government, as officers of the U. S. Dis-
trict Court, are bound, and as a deliberately wrong-
ful and wholly unjustified interference with the
privileged and confidential relationship of client
and attorney existing between Mrs. D’Aquino and
me, and also as a distinctly discourteous action upon
the part of each and every officer and agent of the
Government guilty of such reprehensible conduct.
I brand such misconduct as being of a nature and
character we have always believed to be shunned in
the United States. We are not willing to follow or
adopt methods employed by Hitler’s Gestapo and
Stalin’s Ogpu in the violation of civil liberty and
constitutional right.
No opprobrium connected with this matter at-
taches to the U. 8. Attorney’s office in this judicial
district. Neither the Hon. Frank J. Hennessy, U. 8.
Attorney, nor any of his Assistant U. 8. Attorneys,
nor any member of their staff would ever have been
guilty of any such similar outrageous misconduct
vs. United States of America 29
nor would they or any of them have participated
in this outrage.
/3s/ WAYNE M. COLLINS,
Attorney for Iva Toguri
D’Aquino.
Copies to:
Hon. Frank J. Hennessy,
U.S. Attorney.
POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO BE ADMITTED TO BAIL
1. Title 18 USCA, Section 597, as amended June
27, 1940, referring to bail in capital cases, provides
as follows:
‘Upon all arrests in criminal cases where the
punishment may be death, bail shall be taken only
by the Supreme Court or a district Court, or by a
justice of the Supreme Court, a circuit judge, or
a judge of a district court.”’
2. Rule 46(a) of the Rules of Criminal Pro-
cedure for the District Courts of the United States,
referring to the Right to Bail, provides in part, as
follows:
‘‘A person arrested for an offense punishable
by death may be admitted to bail by any court or
judge authorized by law to do so in the exercise of '
discretion, giving due weight to the evidence and to
the nature and circumstances of the offense.’’
30 Iva Ikuko Toguri D’ Aquino
3. Originally, bail in treason cases was not spe-
cifically provided for by statute but it was allowed
by federal courts for special reasons in appropriate
cases because admission to bail is an incident of the
constitutional grant of judicial power and is an
inherent right of that power. See Hamilton v. U.S.,
3 Dall. (8 U.S.) 17, 1 L. Ed. 490, decided in 1795
when the then existing statute (Act of April 30,
1790, 1 Stat. 112, Sec. 4) provided only the death
penalty. The accused there, nevertheless, was ad-
mitted to bail.
And: U.S. v. Jones (1813) (CCPa) Fed. Case No.
15495, pg. 658, holding that one charged with piracy
(a capital offense) who was suffering from the
ravages of a disease which is injurious under con-
finement should be admitted to bail.
See also: U.S. ex rel. Herbert v. Marshal (1856),
Fed. Case No. 15, 726a, where a defendant was in-
dicted for murder and it was held that if it is clear
to the court that a conviction for manslaughter
might take place the accused should be admitted
to bail.
Where a conviction is had for treason, the present
rule is that the Court, in its discretion, may impose
a minimum imprisonment of five years and a $10,000
fine. See 18 USCA, See. 2.
In 1862, Congress enacted the Act of July 17,
1862, now 18 USCA, See. 2, which prescribes alter-
native punishments in treason cases and ever since
then it has been the recognized rule that an accused
vs. United States of America ot
indicted on a charge of treason may be admitted to
bail. The leading case first deciding this rule under
the new statute is Case of Jefferson Davis (CCA
Va.), (1867-1871), Fed. Case No. 3621a, at pages
78, 79, where bail was authorized.
4. In the great majority of the cases where
defendants have been convicted of treason by our
courts they have been sentenced to imprisonment.
We find no cases where a death sentence, imposed by
any of our courts, has been carried into execution.
In each of the cases where death sentences were
imposed by district courts and were not reversed
by appellate courts, our Presidents have commuted
the sentences or granted pardons. See Cramer v.
USS., 325 U.S. 1, 24-25, 89, L. Ed. 1445, 1446, where
Mr. Justice Jackson, delivering the Opinion of the
Court states:
‘‘In the century and a half of our national exist-
ence not one execution on a Federal treason con-
viction has taken place. Never before has this Court
had occasion to review a conviction. In the few
cases that have been prosecuted the treason clause
has had its only judicial construction by individual
Justices of this Court presiding at trials on circuit
or by district or circuit judges. After constitutional
requirements have been satisfied, and after juries
have convicted and courts have sentenced, Presi-
dents again and again have intervened to mitigate
judicial severity or to pardon entirely.”’
32 Iva Ikuko Toguri D’ Aquino
0. Inasmuch as the defendant, illegally and in
violation of the principles and rules of international
law, was seized by agents of the United States,
acting under orders of the Attorney General, out-
side the jurisdiction of the United States in Tokyo,
Japan, at the home and residence of the defendant
and her husband on August 26, 1948, and thereafter
forcibly was brought to San Francisco by agents of
the United States, although defendant and her hus-
band then were and ever since then have been and
now are nationals and citizens of Portugal and were
outside the jurisdiction of the United States and in
Japan but within the exclusive jurisdiction of
Portugal and entitled to the protection of the gov-
ernment of Portugal, she should be admitted to bail.
6. Kor the reason that the defendant has been
unlawfully kidnapped, brought to this country, in-
dicted and is indigent it is necessary for her con-
stantly to consult with her attorney in the prepara-
tion of her defense and for her, jointly with her
counsel, to interview in person many witnesses for
her defense and whereas such interviews are im-
possible to conduct at County Jail No. 3 where de-
fendant is confined and held incommunicado from
all visitors except her father, sister and counsel,
necessity and principles of international comity
and justice require she should be admitted to rea-
sonable bail for said purposes.
7. The Attorney General had neither constitu-
tional nor statutory authority or jurisdiction to
vs. United States of America 33
seize the defendant in Japan and remove her there-
from to San Francisco, his authority and jurisdic-
tion being limited to the continental United States
and, in consequence, there was no jurisdiction to
indict the defendant.
8. According to the law of the United States the
defendant, accused by indictment herein, neverthe-
less, is presumed to be innocent of the charges
therein preferred against her.
9. The foregoing demonstrate that the defendant
has a substantial defense to the indictment on pure
questions of law as well as on pure questions of fact
and demonstrate the right to or the probability of
a dismissal of the indictment or of an acquittal of
the charges preferred against her.
For the said reasons we respectfully urge that
the defendant be admitted to reasonable bail with
such safeguards as to the Court shall seem sufficient.
Respectfully submitted,
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
[Endorsed]: Filed October 13, 1948.
District Court of the United States, Northern Dis-
trict of California, Southern Division
At A Stated Term of the District Court of the
United States for the Northern District of Cali-
fornia, Southern Division, held at the Court Room
34 Iva Ikuko Toguri D’ Aquino
thereof, in the City and County of San Francisco,
on Thursday, the 14th day of October, in the year
of our Lord one thousand nine hundred and forty-
eight.
Present: The Honorable Louis E. Goodman,
District Judge, sitting for and on behalf
of Honorable Michael J. Roche, District
Judge.
[Title of Cause. ]
ORDER
(Minute order that defendant’s motion for
bail be denied and providing that marshal pro-
vide suitable place of confinement where de-
fendant will have full opportunity to interview
witnesses and consult with counsel.)
This case came on regularly this day for hearing
of motion for bail of defendant, Iva Ikuko Toguri
D’Aquino, who was present in the custody of the
United States Marshal and with her attorney,
Wayne Collins, Esq. Hon. Frank J. Hennessy,
United States Attorney, and Tom De Wolfe, Esq.,
Special Assistant to the Attorney General, were
present on behalf of the United States.
After hearing Mr. Collins and Mr. De Wolfe, it
is Ordered that said motion that defendant be ad-
mitted to bail be denied. Further ordered that the
United States Marshal provide suitable place of
confinement where defendant shall have full oppor-
tunity to interview witnesses on her behalf and
her attorney. |
vs. United States of America 35
[Title of District Court and Cause. ]
DEMAND FOR BILL OF PARTICULARS
Defendant demands a Bill of Particulars, failing
which defendant will apply to the court for an order
directing the plaintiff or the U. 8. Attorney, attor-
ney for plaintiff, to furnish defendant a Bill of
Particulars, Acts, Facts and Things specified in
the indictment in the above-entitled cause, as
follows:
1. A statement of the particular place or places
to which the word ‘‘elsewhere’’ on the last line of
paragraph 2 on line 13 of page 2 of the indictment
refers.
2. A statement of the particular place or places
to which the word ‘‘elsewhere’’ in paragraph 3(a)
on line 25 of page 2 of the indictment refers.
3. <A statement of the particular place or places
to which the word ‘‘elsewhere’’ in paragraph 3(b)
on line 29 of page 2 of the indictment refers.
4. A statement of the respect or respects in which
the Broadeasting Corporation of Japan was con-
trolled by the Imperial Japanese Government, as
alleged in paragraph 3(a) on page 2 of the indict-
ment, or the meaning of that word as therein used.
5. A statement whether or not the alleged ad-
herence of the defendant and the giving of aid and
comfort to the enemies specified generally in para-
graph 3 on pages 2 and 3 of the indictment actually
36 Iva Ikuko Toguri D’ Aquino
had the effect or result of aiding and comforting
the enemies of the United States and, if so, in what
respect or respects.
6. A statement of the precise or approximate
‘time or times the defendant worked, announced and
wrote radio script as alleged in paragraph 3(a) on
page 2 of the indictment.
7. A statement of the nature, character and con-
tents, in substance or effect, of the statements made
by defendant as a radio speaker, radio announcer
and broadcaster of recorded music alleged in para-
graph 3(a) on page 2 of the indictment.
8. A statement of the nature, character and con-
tents, in substance or effect, of the radio script
prepared or composed by the defendant and of her
talks and announcements and announcements of
radio script alleged in paragraph 3(a) on page 2
of the indictment.
9. A statement of the nature and contents, in
substance or effect, of the announcements and intro-
ductions made by the defendant of musical record-
ings and talks for broadcast by radio from Japan
alleged in paragraph 3(a) on page 2 of the indict-
ment.
10. A statement of the name of the ‘‘another
person,’’ mentioned in overt act No. 1 in paragraph
1 on page 3 of the indictment, with whom the de-
fendant discussed the proposed participation of de-
fendant in the radio broadeasting program therein
mentioned.
vs. United States of America 37
11. A statement of the precise or approximate
time when overt act No. 1, mentioned in paragraph
1 on page 3 of the indictment, took place together
with a statement of the words spoken by each, in
substance or effect, in the discussion therein men-
tioned and the nature of the discussion.
12. A statement of the precise or approximate
time when overt act No. 2, mentioned in paragraph
2 on page 3 of the indictment, took place, together
with the names of the employees of the Broad-
casting Corporation of Japan with whom the de-
fendant is alleged to have had the discussion therein
alleged, together with a statement of the words
spoken by each of them and defendant, in substance
or effect.
13. <A statement of the precise or approximate
time when overt act No. 3, mentioned in paragraph
2 on page 4 of the indictment, took place, together
with the words spoken by defendant into the micro-
phone, in substance or effect, and the nature of the
statements made.
14. A statement of the precise or approximate
time when overt act No. 4, mentioned in paragraph
4 on page 4 of the indictment, took place, together
with the words spoken by defendant, in substance or
effect, into the microphone and also a statement, in
substance or effect, of the precise reference alleged
therein to have been made by her concerning ene-
mies of Japan.
15. A statement of the precise or approximate
38 Iva Ikuko Toguri D’ Aquino
time when overt No. 5, mentioned in paragraph 5
on page 4 of the indictment, took place, together
with the nature and contents, in substance and effect,
of the script prepared for subsequent radio broad-
cast concerning the loss of ships, the ships to which
it referred and the precise statement which was
made concerning the loss of ships, either in sub-
stance or effect.
16. A statement of the precise or approximate
time when overt act No. 6, mentioned in paragraph
6 on page 4 of the indictment, took place, together
with the words which were spoken, in substance or
effect, concerning the loss of ships, together with
a statement of what ships the statement referred to.
17. A statement of the precise or approximate
time when overt act No. 7, mentioned in paragraph
7 on page 4 of the indictment, took place, together
with a statement of the nature and contents, in
substance or effect, of the radio seript therein
alleged to have been prepared.
18. A statement of the precise or approximate
time when overt act No. 8, mentioned in paragraph
8 on page 4 of the indictment, took place, together
with the words, in substance or effect, which were
spoken into the microphone and the names of each
of the persons who engaged in the entertainment
dialogue therein mentioned and the words spoken,
in substance or effect, by any of the participants in
the entertainment dialogue therein mentioned.
In ease of your neglect or refusal so to furnish
said particulars to said defendant, defendant will
vs. United States of America 39
apply to the court for an order directing compliance
with this demand.
Dated: October 27, 1948.
/3s/ WAYNE M. COLLINS,
Attorney for Defendant.
State of California,
City and County of San Francisco—ss.
Wayne M. Collins, being first duly sworn, deposes
and says: that he is attorney of record for Iva
Ikuko Toguri D’Aquino, defendant herein; that he
has read the foregoing demand for bill of par-
ticulars and knows the contents thereof; that he
verily believes the fact to be that the defendant
eannot safely go to trial on the indictment herein
without the details and particulars of the matters
requested in the foregoing demand for a bill of par-
ticulars and that said details and particulars are
essential and necessary to inform defendant of the
nature of the accusation against her with sufficient
precision to enable her to prepare for trial, to pre-
vent being taken by surprise thereat and to permit
her to plead the conclusion thereof in bar of another
prosecution on the same charge.
/s/ WAYNE M. COLLINS.
Subscribed and sworn to before me this 27th day
of October, 1948. —
[Seal] /s/ JANE M. DOUGHERTY,
Notary Public in and for the City and County of
San Francisco, State of California.
Receipt of copy acknowledged.
[Endorsed]: Filed October 27, 1948.
40 Iva Ikuko Toguri D’ Aquino
[Title of District Court and Cause.]
DEMAND FOR DISCOVERY AND
INSPECTION
Defendant demands the right to inspect and copy
or photograph the hereinafter designated papers,
documents or tangible objects, obtained from or be-
longing to the defendant or obtained from others
by seizure or process, which said papers, documents
or tangible objects, hereinafter specified, are ma-
terial to the preparation of defendant’s defense, viz:
(1) The statement, purporting to be made up,
in part, of an oral statement of the defendant ob-
tained from her and taken down in pencil by Ser-
geant Page (Paige?) of the Counter Intelligence
Corps of the U. 8S. Eighth Army in Japan, acting
under the orders of Brigadier General Richard
Thorpe and Lt. Col. Turner of the said Corps and
Army at the Yokohama New Grand Hotel, Yoko-
hama, Japan, on or about September 6, 1945, which
purports to set forth a narration of defendant’s
residence, employment, marriage to Philip (Felipe)
J. D’Aquino, a national, citizen and domiciliary
of Portugal residing in Japan, and her activities in
Japan from July, 1941, to the date thereof, the
defendant being at said time and place held under
restraint by said army authorities.
| (2) The picture or pictures of the defendant and
General Eichelberger, U.S.A., taken at the order of
said General at the Yokohama New Grand Hotel,
us. United States of America 41
Yokohama, Japan, on or about September 6, 1945.
(3) The motion picture film and sound recording
(sound film) synchronized therewith made of the
defendant at Radio Tokyo, Tokyo, Japan, on or
about October 1, 1945, on orders of the Signal Corps
of the U. 8. Eighth Army in Japan, and the radio
script, consisting of several pages, then and there
prepared for the same by a Second Lieutenant, U.S.
Army, whose name was Cadeson or Kadeson or a
name similarly pronounced, which defendant, by
said person, was ordered to read into said sound
film and thereafter at said time and place was or-
dered signed by defendant in her maiden name Iva
I. Toguri and also, in quotes, ‘‘Tokyo Rose,’’ to-
gether with several other pages of radio script then
and there obtained by said person from the defend-
ant.
(4) The typewritten, signed and witnessed state-
ment, purporting to be made up, in part, of an oral
statement obtained from the defendant and drawn
up from pencil or ink notes made by a Mr. Hetrick
who was in a U. 8. Army uniform and either a
member of the Counter Intelligence Corps of the
U. 8S. Eighth Army in Japan, or attached thereto,
or a member of the U. S. Department of Justice
or a member of the U. 8. Federal Bureau of Inves-
tigation, at Sugamo Prison in Tokyo, Japan, on or
about December, 1945, the defendant then and there
being held under restraint and imprisoned by U. 5.
authority which restraint and imprisonment com-
menced on October 17, 1945, and continued until
42 Iva Ikuko Toguri D’ Aquino
October 25, 1946, when defendant was released
_ therefrom, together with the said notes, the said
statement purporting to set forth a narration of
defendant’s residence, marriage to Philip (Felipe)
J. D’Aquino, a national, citizen and domiliary of
Portugal residing in Japan, and her employment
and activities in Japan from July 1941, to the date
thereof.
(9) The typewritten, signed and witnessed state-
ment, purporting to be made up, in part, of an oral
statement obtained from the defendant by and
drawn up. by Fred Tillman, special agent of the
U. S. Federal Bureau of Investigation, from his
notes, he then being in U. 8. Army uniform and
attached to the Counter Intelligence Corps or the
U.S. Eighth Army in Japan, and thereafter signed
by defendant at Sugamo Prison, Tokyo, Japan, on
or about April, 1946, together with the original notes
thereof, the defendant being held in restraint and
imprisoned at said Sugamo Prison at said times by
the United States, said statement purporting to
narrate the history of defendant’s residence, mar-
riage and employment in Japan from July, 1941, to
the date thereof.
(6) "The photostat copy of notes purporting to
be made by Clark Lee and purporting to be or to
relate to an interview of the defendant by Harry
Brundidge and Clark Lee, newspaper correspond-
ents attached to the U. S. Eighth Army in Tokvo,
Japan, purporting to have taken place on or about
vs. United States of America 43
September 2, 1945, at the Imperial Hotel in Tokyo,
Japan, said photostat copy of notes being initialed
‘‘TD’A’”’ on each page thereof and signed in de-
fendant’s name on or about March 26, 1948, at the
building of General Headquarters of the United
States Army, Tokyo, Japan, to which defendant
forcibly was brought by agents of the United States
from her home and sick bed in Tokyo, Japan, the
said Harry Brundidge and one, John Hogan, a spe-
cial assistant to the U. 8S. Attorney General, being
present at said time and place, said photostat copy
of notes purporting to relate to the history and
activities of defendant in Japan from 1941 to the
date thereof.
(7) The package of typewriter sized foolscap
paper, consisting of a series or number of original
and perhaps, a number of carbon copies, of type-
written pages or script, approximately one-half
inch thick, obtained from the defendant by agents
of the Counter Intelligence Corps of the U. S.
Eighth Army in Japan, namely, Sergeant Page
(Paige?) for Lt. Col. Turner at Yokohama, Japan,
on or about September 15, 1945, said package of
papers thereafter being in the possession of Fred
Tillman, special agent of the U. S. Federal Bureau
of Investigation, who, on or about April, 1946, at
Sugamo Prison, Tokyo, Japan, obtained defendant's
initialing of each page thereof while she was held
in restraint and duress at said prison by United
States authority, said papers in said package of
a4 Iva Ikuko Toguri D’ Aquino
papers being in the nature of radio script pur-
porting to have been prepared for broadcast from
Radio Tokyo.
(8) Any and all phonographic tape, wire, elec-
trical, magnetic, sound or other types of. records,
recordings or transcriptions made, manufactured,
received or intercepted, and in the possession of or
available to plaintiff, of any and all of the Zero
Hour programs of Radio Tokyo or radio station
JOAK on which the prosecution asserts or will
assert at any trial herein that the defendant or per-
son designated or known or referred to as ‘‘Orphan
Ann,’’ ‘‘Orphan Annie’’ or ‘‘Tokyo Rose”’ spoke,
talked, recorded, announced or broadcasted any
statement, matter or thing, together with any and
all of the musical records or pieces or recordings
thereof which the prosecution asserts or will assert
at any trial herein that such person played, an-
nounced or broadeast thereon, covering the period
of time from or about November 1, 1948, to and
including August 15, 1945.
(9) <Any and all recordings of the defendant’s
voice made on or about January 6, 1946, at Radio
Tokyo, in Tokyo, Japan, obtained from the defend-
ant by order of the Counter Intelligence Corps of
the U. 8. Eighth Army in Japan, which the prose-
cution asserts or will assert at any trial herein to
be a recording of defendant’s voice.
(10) Any and all recordings of the defendant’s
voice made on or about February, 1948, at Radio
us. United States of America 45
Tokyo, in Tokyo, Japan, obtained from the defend-
ant by order of the Counter Intelligence Corps of
the U. S. Eighth Army in Japan, which the prose-
cution asserts or will assert at any trial herein to
be a recording of defendant’s voice.
(11) Several pages of handwritten script on
typewriter sized foolscap paper, the contents pur-
porting to be radio script, obtained from the de-
fendant at Yokohama Prison, Yokohama, Japan,
by Col. Robert Hardy, U.S.A., officer in charge of
that prison, on or about October 17, 1945, which
purports to be radio script prepared for broadcast.
(12) <Any and all other papers, documents, rec-
ords and things the United States or its agents
obtained, if any, from the defendant, her husband
or her home and residence situated at No. 396 Ike-
jiri Machi, Setagaya Ku, Tokyo, Japan, during the
enforced absence therefrom of the defendant, which
has or may have any bearing on any issues involved
in this cause whether or not the plaintiff or its
agents intend to use or offer any such evidenee at
any trial of the issues herein.
Inspection of each and all of the above-mentioned
statements, documents and things, obtained from
defendant as above stated, are or may be material
to the preparation of defendant’s defense to the
indictment herein and are in the possession of or
available to the plaintiff, or its agents, representa-
tives and attorney.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
46 Iva Ikuko Togurt D’ Aquino
State of California,
City and County of San Francisco—ss.
Wayne M. Collins being first duly sworn deposes
and says: that he is attorney of record for Iva
Ikuko Toguri D’Aquino, defendant herein; that he
has read the foregoing Demand for Discovery and
Inspection and knows the contents thereof; that as
such attorney he has investigated the facts concern-
ing each of the twelve statements, documents and
records mentioned therein; that he verily believes
the facts to be true which therein are recited or
narrated in said motion; that each of the items
therein sought to be inspected, examined and copied
or photographed are, for the reasons therein stated,
material to the preparation of defendant’s defense
to the charges brought against her in the indictment
in said cause and he verily believes that defendant’s
request and motion for discovery and inspection
thereof is reasonable.
/3/ WAYNE M. COLLINS.
Subseribed and sworn to before me this 3rd day
of November, 1948.
[Seal] /s/ JANE M. DOUGHERTY,
Notary Public in and for the City and County of
San Francisco, State of California.
Receipt of copy acknowledged.
[Endorsed]: Filed November 3, 1948.
us. United States of America 47
[Title of District Court and Cause. ]
DEMAND FOR ADDITIONAL
BILL OF PARTICULARS
Defendant demands an Additional Bill of Par-
ticulars, failing which defendant will apply to the
court for an order directing the plaintiff or the U.S.
Attorney, attorney for plaintiff, to furnish defend-
ant an Additional Bill of Particulars, Acts, Facts
and Things specified in the indictment in the above-
entitled cause, as follows:
19. A statement of the times and places where
defendant was arrested in Japan and confined to
prison by agents of the United States, and there-
after released therefrom, the periods of time of said
imprisonments, the authority and purpose for the
said arrests and commitments to imprisonment and
discharges therefrom, and a statement of the pur-
pose for which and the authority under which de-
fendant was arrested in Japan and brought to San
Francisco in this Federal Judicial District shortly
prior to the date of the return of the indictment
herein, as alleged in the final paragraph on page 4
of the indictment, and also a statement whether or
not each of her said arrests and imprisonments and
releases therefrom, and her removal from Japan to
San Francisco, and each of said things, were done
with the consent and authority of the Allied Powers,
48 Iva Ikuko Toguri D’ Aquino
the government of Portugal, and the government of
Japan or of any of said sovereign powers.
20. A statement whether the employment of de-
fendant as a radio operator, radio announcer, radio
script writer and broadcaster of recorded music, as
alleged in paragraph 3(a) of the indictment, was or
was not in a capacity for which only Japanese na-
tionals were eligible.
21. A statement of the facts upon which are
based the conclusions in the indictment, in para-
graph 1 on page 1, paragraph 2 on page 2 and para-
graph on top of page 4, that defendant is a citizen
of the United States and a person owing allegiance
to the United States.
22. A statement whether or not the defendant at
Tokyo, Japan, was united in marriage to her now
husband, Felipe J. D’Aquino, on April 19, 1945, who
then was and ever since then has been and now is
a national, citizen and domiciliary of Portugal
residing in Japan.
23. A statement whether or not the United States
heretofore, within the past three years, arrested
defendant thrice or at all in Japan on the same
accusation of treason as charged in the indictment
herein and imprisoned her thrice and thereafter,
acquitted her of the charges or convicted her thereon
or sentenced or imprisoned her thereon and there-
after liberated her from such imprisonment at any
time and, if so, when.
vs. Umted States of America 49
In ease of your neglect or refusal so to furnish
said particulars to said defendant, defendant will
apply to the court for an order directing compliance
with this demand.
Dated: November 38, 1948.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
State of California,
City and County of San Francisco—ss.
Wayne M. Collins, being first duly sworn, deposes
and says: that he is attorney of record for Iva
Ikuko Toguri D’Aquino, defendant herein; that he
has read the foregoing demand for an additional
bill of particulars and knows the contents thereof ;
that he verily believes the fact to be that the de-
fendant cannot safely go to trial on the indictment
herein without the details and particulars of the
matters requested in the foregoing demand for an
additional bill of particulars and that said details
and particulars are essential and necessary to in-
form defendant of the nature of the accusation
against her with sufficient precision to enable her
to prepare for trial, to prevent being taken by sur-
prise thereat and to permit her to plead the con-
50 Iva Ikuko Togurt D’ Aquino
clusion thereof in bar of another prosecution on,
the same charge.
/s/ WAYNE M. COLLINS.
Subscribed and sworn to before me this 3rd day
of November, 1948.
[Seal] /s/ JANE M. DOUGHERTY,
Notary Public in and for the City and County of
San Francisco, State of California.
Receipt of copy acknowledged.
[Endorsed]: Filed November 3, 1948.
[Title of District Court and Cause. ]
NOTICE OF MOTION TO STRIKE
To Hon. Frank J. Hennessy, U. S, Attorney, At-
torney for Plaintiff.
You will please take notice that on Monday,
November 22, 1948, at the hour of 10 o’clock a.m.
of said day, or so soon thereafter as counsel can be
heard, the defendant will bring on for hearing the
within Motion to Strike upon the grounds and for
the reasons set forth therein.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
Receipt of copy acknowledged.
vs. United States of America ay
[Title of District Court and Cause. ]
MOTION TO STRIKE
The defendant moves the court for its order
striking the whole of the indictment herein and, if
the whole be not ordered stricken, she moves the
court to strike the following matter therefrom, to
vat :
1. The phrase ‘‘knowingly, wilfully, unlawfully,
feloniously, intentionally, traitorously and treason-
ably’? appearing in paragraph 2 on lines 5 and 6
of page 2 thereof, the same being conclusions of the
pleader ;
2. The phrase ‘‘and the officials and employees
thereof’’ appearing in paragraph 2 on line 11 of
page 2 thereof ;
3. The words ‘‘within the United States, Japan
and elsewhere’’ appearing in paragraph 2 on lines
12 and 13 of page 2 thereof ;
4. The word ‘‘elsewhere’’ appearing in para-
graph 3(a) on line 25 of page 2 thereof ;
o. The word ‘‘elsewhere’’ appearing in para-
graph 3(b) on line 29 of page 2 thereof’;
6. The phrase ‘‘and their Allies in the Pacific
Ocean area’’ appearing in paragraph 3(a) on lines
24 and 25 on page 2 thereof;
ie he words “and iis Allies” in paragraph 3
on line 1 of page 3 thereof ;
52 Iva Ikuko Toguri D’ Aquino
8. The words ‘‘and Allied’”’ in paragraph 3 on
line 1 of page 3 thereof;
9. The words ‘‘and Allied’? appearing in para-
graph 3 on line 2 of page 3 thereof;
10. The words ‘‘and Allied’’ appearing in para-
graph 3 on line 4 of page 3 thereof;
lj. The words ‘‘and Allied’’ appearing in para-
graph 3 on lines 4 and 5 of page 3 thereof;
12. The phrase ‘‘knowingly, wilfully, unlawfully,
feloniously, traitorously and treasonably”’ in para-
graph 4 on lines 14 and 15 of page thereof ;
13. The whole of paragraph 2 thereof;
14. The whole of paragraph 3, 3(a) and 3(b)
thereof ;
15. The whole of paragraph 4 thereof;
16. The whole of paragraph 4, including its sub-
divisions I, 2, 3, 4, 5, 6, 7 and 8;
17. The whole of said indictment.
Said motion will be made on the indictment, this
motion, notice hereof, and upon all the pleadings,
papers, documents and files herein.
The said matter in said indictment and the said
indictment will be sought to be stricken upon the
erounds that said same are (1) sham, (2) irrelevant,
(3) redundant, (4) immaterial, (5) superfluous,
(6) repetitious, (7) unnecessary, (8) multifarious
and (9) conclusions.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
vs. United States of America 53
POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO STRIKE
Under Art. III, Sec. 3, Cl. 1, treason consists
only of levying war against the United States or in
adhering to the enemies of the United States, giving
them aid and comfort, and, in consequence, can be
committed only against the United States.
Actions against Allies, that is to say, foreign
sovereigns cannot constitute treason against the
United States.
‘‘Constructive’’ treason is not recognized by
American law. See Shortridge v. Macon, 22 Fed.
Cas. No. 12,812, and also U.S. v. Burr, 25 Fed.
Cas. No. 14,692a.
In consequence, the reference to the Allies made
in the indictment are irrevelant and surplusage.
Respectfully submitted,
/3s/ WAYNE M. COLLINS,
Attorney for Detendant.
[Endorsed]: Filed November 15, 1948.
[Title of District Court and Cause. ]
NOTICE OF MOTION TO DISMISS
INDICTMENT
Lo Hon. Frank J. Hennessy, U. 8S. Attorney, At-
torney for Plaintiff.
You will please take notice that on Monday, No-
34 Iva Ikuko Toguri D’ Aquino
vember 22, 1948, at the hour of 10 o’clock a.m. of
said day, or so soon thereafter as counsel can be
heard, the defendant will move the above-entitled
Court to dismiss the indictment herein upon the
grounds and for the reasons set forth in the within
Motion to Dismiss. |
/3s/ WAYNE M. COLLINS,
Attorney for Defendant.
[Title of District Court and Cause. ]
MOTION TO DISMISS INDICTMENT
The defendant moves to quash and dismiss the in-
dictment upon each and all of the following grounds
and for the following reasons, to wit:
(1) The indictment fails to state facts sufficient
to constitute an offense against the United States
for failing to be a plain, concise and definite writ-
ten statement of the offense charged, being vague,
indefinite and uncertain in material respects in that
the charges are so general that they do not inform
the defendant of the acts of which she is accused
with sufficient precision and description to enable
her to prepare her defense thereto.
(2) Inasmuch as the indictment purports to
plead treason in broad and general terms, that is to
say, by pleading adherence to enemies through giv-
ing them aid and comfort, In paragraphs 2 and 3
of the indictment, without, however, specifying the
vs. United States of America 55
particulars of that adherence, aid and comfort and
then, following those general allegations pleads spe-
cial overt acts, in paragraph 4 thereof, which are
vague, indefinite and uncertain on their face but
are innocent and ineffective acts, as pleaded, and
these special allegations limit and control the gen-
eral allegations of treason, the indictment fails to
state facts sufficient to constitute an offense against
the United States. ,
(3) The court has no jurisdiction over the per-
son of the defendant.
(4) The court has no jurisdiction over the per-
son of the defendant because neither the Constitu-
tion nor Congress has authorized the seizure of the
defendant at her residence in Japan or her removal
therefrom to San Francisco.
(5) The court has no jurisdiction over the de-
fendant because she was seized illegally at her resi-
dence in Japan by agents of the U. 8. and brought
to San Francisco in violation of the sovereignty of
Portugal, of which country she is a national, citi-
zen and domiciliary, and in violation of the sov-
ereignty of Japan where she resides and hence also
in contravention of principles-of international law.
(6) The court has no jurisdiction over the of-
fense alleged in the indictment which therein is
stated to have taken place outside the jurisdiction
of the United States on foreign soil by defendant
as a resident of Japan.
56 Iva Ikuko Toguri D’ Aquino
(7) The court has no jurisdiction of the offense
alleged in the indictment because the defendant
was seized illegally at her residence in Japan and
forcibly brought to San Francisco by agents of the
United States without the authority and consent
of the Government of Portugal and against the
sovereignty of Portugal.
(8) The court has no jurisdiction of the of-
fense alleged in the indictment because the defend-
ant was seized illegally at her residence in Japan
and forcibly brought to San Francisco by agents
of the United States without the authority and con-
sent of the Government of Japan and against the
sovereignty of Japan.
(9) Neither this judicial district nor this court
is the proper venue for the trial of the offense
alleged in the indictment because neither the Con-
stitution nor Congress has authorized any place
whatever as the place of trial on treason charges
alleged to have been committed in Japan by a Por-
tuguese national or any other person residing
within the geographical boundaries of Japan.
(10) The court has no jurisdiction of the of-
fense alleged in the indictment because neither the
Constitution nor Congress has authorized or desig-
nated any place whatever as the place of trial on
treason charges alleged to have been committed in
Japan by a Portuguese national or any other person
residing within the geographical boundaries of
Japan.
vs. Umted States of America oe
(11) The court has no jurisdiction of the of-
fense alleged in the indictment because the United
States has no extraterritorial jurisdiction extending
over a Portuguese national or any other person re-
siding within the geographical boundaries of Japan.
(12) The indictment is duplicitous for contain-
ing an improper joinder of several separate and dis-
tinct purported offenses which have not been sepa-
rately stated.
(13) Neither the Attorney General nor the
United States had constitutional or statutory au-
thority or jurisdiction to seize the defendant at
her place of residence in Japan and remove her
therefrom to San Franctsco; such authority and
jurisdiction being limited to the continental United
States and its possessions and in consequence, there
was no jurisdiction lodged in the grand jury to in-
dict the defendant and no jurisdiction exists in this
court either over her or over the purported of-
fense alleged in the indictment.
(14) Jurisdiction over the defendant is lodged
in the War Department or the military commis-
sions, tribunals or war courts set up by the U. S.
and its Allies in Japan, to the exclusion of the At-
torney General and this Court.
(15) Jurisdiction of the offense alleged in the
indictment is lodged in the War Department or the
military commissions, tribunals or war courts set
up by the U. 8. and its Allies in Japan, to the ex-
clusion of the Attorney General and this Court.
58 Iva Ikuko Togurt D’ Aquino
(16) Jurisdiction over the defendant, if any
exists, is lodged exclusively in the Government of
Portugal.
(17) Jurisdiction over the offense, if any exists,
is lodged exclusively in the Government of Por-
tugal.
(18) Jurisdiction over the defendant, if any ex-
ists, 1s lodged exclusively in the Government of
Japan.
(19) Jurisdiction over the offense, if any exists,
is lodged exclusively in the Government of J apan.
(20) The indictment fails to state facts suffi-
cient to constitute an offense against the United
States.
(21) The indictment fails to state facts suffi-
cient to constitute an offense against the United
States for the reason that the defendant is a na-
tional, citizen and domiciliary of Portugal whose
residence is in Japan.
(22) The indictment fails to state facts suffi-
cient to constitute an offense against the United
States for the reason that the defendant, by her
marriage, in Japan, to a national, citizen and domi-
ciliary of Portugal, resident in Japan, thereby lost
her prior nationality, citizenship, domicile and resi-
dence and acquired the Portuguese nationality, citi-
zenship and domicile of her husband and also his
residence in Japan.
us. Umted States of America 59
(23) The indictment fails to state facts sufficient
to constitute an offense against the United States
for the reason that the defendant’s marriage on
April 19, 1945, in Tokyo, Japan, to a national,
citizen and domiciliary of Portugal, residing in
Japan, constituted an act of expatriation and her
naturalization as a Portuguese whereby she lost
her prior nationality, citizenship, domicile and resi-
dence status and acquired and still has that of her
husband.
(24) The court has no jurisdiction over the per-
son of the defendant because she was seized ille-
gally at her residence in Japan and forcibly brought
to San Francisco by agents of the U. S. without the
authority and consent of the Allied Powers in
Japan having been obtained therefor.
(25) The court has no jurisdiction of the offense
alleged in the indictment because the defendant was
seized illegally in Japan and forcibly brought to
San Francisco by agents of the U. S. without the
authority and consent of the Allied Powers in
Japan having been obtained therefor.
(26) The indictment fails to state facts suffi-
cient to constitute an offense against the United
States inasmuch as it alleges the employment of
defendant as a radio speaker, radio announcer, ra-
dio seript writer and broadcaster of recorded music,
an occupation for which only Japanese nationals
were eligible which, by operation of our law, con-
stitutes an act of expatriation whereby she lost her
60 Iva Ikuko Togurt D’ Aquino
prior nationality and hence the court has neither
Jurisdiction over the defendant nor of the cause.
(27) The cause is barred by the limitation
against prosecution, trial and punishment provi-
sions of Title 18 USCA, Section 582, which pro-
vides that ‘‘No person shall be prosecuted, tried,
or punished for any offense, not capital, except as
provided in section 1046 (section 584 of this title),
unless the indictment is found, or the information
is instituted, within three years next after such
offense shall have been committed,’’ and by the pro-
visions of Title 18 USCA, Sec. 3282, which set up
a limitation against prosecution, trial and punish-
ment for offenses not capital unless the indictment
is found within three years next after such offense
shall have been committed.
(28) The cause is barred by the limitation of
prosecution, trial and punishment provisions of
Title 18, USCA, Section 581, which provides that
‘‘No person shall be prosecuted, tried, or punished
for treason or other capital offense, wilful murder
excepted, unless the indictment is found within
three years next after such treason or capital of-
fense is done or committed,’’ said statute not being
repealed by the Act of Aug. 4, 1939, c. 419, sec. 1,
53 Stat. 1198, codified as Title 18 USCA, Secs. 581la
and 581b, and Sec. 3281, effective Sept. 1, 1948,
which authorize an indictment for any offense pun-
ishable by death to be found at any time with-
out regard to any statute of limitations but, clearly,
does not authorize either a prosecution, trial or pun-
ishment for treason committed three years before
us. United States of America 61
indictment found, treason not necessarily being an
offense punishable by death, those new sections
merely authorizing a grand jury to return an in-
dictment in such a ease.
(29) The court has no jurisdiction over the per-
son of the defendant inasmuch as it appears from
the indictment itself that the alleged offense was
committed outside the boundaries and jurisdiction
of the United States and its possessions, to wit, in
Japan by a resident of Japan.
(30) The court has no jurisdiction over the
cause inasmuch as it appears from the indictment
that the alleged offense was committed outside the
boundaries and jurisdiction of the United States
and its possessions, to wit, in Japan by a resident
of Japan.
(31) The indictment fails to state facts suffi-
cient to constitute an offense against the United
States because it nowhere therein alleges that any
acts, words or conduct of the defendant constituted
a completed crime of treason.
(32) The indictment fails to state facts sufficient
to constitute an offense against the United States
for failing to be a plain, concise and definite writ-
ten statement of the offense charged in that it is
vague, indefinite and uncertain in material respects
and, in consequence, fails to inform defendant of
the nature of the accusation against her sufficient
to enable her to present her defense thereto, in the
following particulars, to wit:
62 Iva Ikuko Toguri D’ Aquino
(a) It does not allege any acts of treason by
adherence to the enemies through giving them aid
and comfort by specifying the particulars thereof
and, inasmuch as the special overt acts pleaded
in paragraph 4 of the indictment limit and control
the general accusation, pleaded in paragraphs 2 and
3 thereof, and these special overt acts are innocent
and ineffective on their face to sustain a charge of
treason it cannot be ascertained therefrom what
acts or conduct, if any, constitute the treason and
are complained of ;
(b) It is not alleged therein and it cannot be
ascertained therefrom what particular place or
places the word ‘‘elsewhere’’ on the last line of
paragraph 2 on line 18 of page 2 of the indictment,
the word ‘‘elsewhere’’ in paragraph 3(a) on line
25 of page 2 thereof and the word ‘‘elsewhere”’ in
paragraph 3(b) on line 29 of page 2 thereof re-
fers;
(c) It is not alleged therein and it cannot be as-
certained therefrom what the word ‘‘controlled’’ in
paragraph 3(a) on line 20 of page 2 of the indict-
ment signifies or means In what mode and manner
such control was exercised ;
(d) It is not alleged therein and it cannot be
ascertained therefrom what were the precise or ap-
proximate time or times the defendant worked,
announced and wrote radio script, as alleged in
paragraph 3(a) on page 2 of the indictment or
what period of time such work, announcing and
writing covered or the nature thereof;
vs. United States of America - 63
(e) Itis not alleged therein and it cannot be as-
certained therefrom what were the nature, character
and contents of the statements made by defend-
ant as a radio speaker, radio announcer and broad-
caster of recorded music alleged in paragraph 3(a)
on page 2 of the indictment ;
(f) It is not alleged therein and it cannot be
ascertained therefrom what was the character and
contents of the radio script prepared or composed
by the defendant or of her talks and announce-
ments, and announcements of radio script, alleged
in paragraph 3(a) on page 2 of the indictment;
(g) It is not alleged therein and it cannot be
ascertained therefrom what was the nature and
contents of the announcements and introductions
made by the defendant of the musical recordings
and talks for broadcast by radio from Japan alleged
in paragraph 3(a) of the indictment;
(h) It is not alleged therein and it cannot be
ascertained therefrom what was or is the name of
the ‘‘another person’’ mentioned in overt act No.
1 in paragraph 1 on page 3 of the indictment with
whom the defendant discussed the proposed partici-
pation of defendant in the radio broadcasting pro-
gram therein mentioned ;
(i) It neither alleges nor can it be ascertained
therefrom whether the employment of the defend-
ant as a radio operator, radio announcer, script
writer and broadcaster of recorded music alleged
in paragraph 3(a) of the indictment was or was
not in a capacity for which only Japanese nationals
or subjects were eligible;
64 Iva Ikuko Togurt D’ Aquino
(j) It neither alleges nor can it be ascertained
therefrom why or how the defendant whoes name
alone demonstrates her to be a foreigner married
to a foreign national and brought here from Ja-
pan could be a citizen of this country;
(k) It neither alleges nor can it be ascertained
therefrom why and under what authority the de-
fendant was first brought, shortly prior to the date
of the return of the indictment, into this federal
judicial district, as alleged in the concluding para-
graph of the indictment;
(1) It neither alleges, charges nor informs de-
fendant of the precise times when each of the acts
or conduct complained of took place;
(m) It neither alleges, charges nor informs de-
fendant of any precise or specific acts, words or
conduct of the defendant which constitute an of-
fense against the United States;
(n) It doesn’t charge that any offense was com-
mitted by the defendant within the United States,
its territories, possessions or jurisdiction;
(o) It neither alleges nor can it be ascertained
therefrom whether the acts or conduct therein men-
tioned actually had any treasonable effect or re-
sult upon any person or entity whatever;
(p) It doesn’t allege and it cannot be ascer-
tained therefrom whether the acts therein alleged to
be overt acts, or any of them, had any treasonabie
effect or result upon any person or entity whom-
soever ;
(q) It does not allege and it cannot be ascer-
vs. United States of America 65
tained therefrom when the overt act alleged in para-
graph 1 on page 3 thereof took place or the name
of the other person who participated in the discus-
sion therein mentioned or the words spoken, in sub-
stance or effect, nor the nature of the alleged dis-
cussion ;
(r) It does not allege and it cannot be ascer-
tained therefrom the time when the overt act al-
leged in paragraph 2 on page 3 thereof took place
or the names of the employees with whom the al-
leged discussion was had or the words spoken, in
substance or effect, or the nature of the alleged
discussion ;
(s) It does not allege and it cannot be ascer-
tained therefrom the time when the overt act alleged
in paragraph 3 on page 4 thereof took place or the
words spoken into the microphone, in substance or
effect, or the nature of the statements made;
(t) It does not allege and it cannot be ascer-
tained therefrom the time when the overt act alleged
in paragraph 4 on page 4 thereof took place or the
words spoken, in substance or effect, into the micro-
phone, or what was the precise reference made con-
cerning enemies of Japan;
(1) It does not allege and it cannot be ascer-
tained therefrom the time when the overt act al-
leged in paragraph 5 on page 4 thereof took place
or what was the nature and contents, in substance
or effect, of the script prepared for subsequent
radio broadcast concerning the loss of ships or what
ships it refers to;
66 Iva Ikuko Togurt D’ Aquino
(v) It does not allege and it cannot be ascer-
tained therefrom the time when the overt act al-
leged in paragraph 6 on page 4 thereof took place
or what words were spoken, in substance or effect,
concerning the loss of ships or what ships it re-
fers to;
(w) It does not allege and it cannot be ascer-
tained therefrom the time when the overt act al-
leged in paragraph 7 on page 4 thereof took place
or what was the nature and contents, in substance
or effect, of the radio script therein alleged to have
been prepared ;
(x) It does not allege and it cannot be ascer-
tained therefrom the time when the overt act al-
leged in paragraph 8 on page 4 thereof took place
or what words, in substance or effect, were spoken
into the microphone or the names of the persons
who engaged in the entertainment dialogue therein
mentioned or the: substance and effect of the words
spoken by any of them in the entertainment dia-
logue.
This motion will be made and based upon the in-
dictment, notice of this motion, points and authori-
ties in support thereof, affidavit annexed to the mo-
tion to admit defendant to bail, and all papers,
records, documents and files herein and any evi-
dence which may be adduced in support of this
motion.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
us. United States of America 67
(Copy)
Exhibit A
Warrant of Arrest
In the Name and Authority of
The Supreme Commander for the Allied Powers
To: The Provost Marshal, General Headquarters,
Far Kast Command, APO 500:
1. You are directed to arrest, and deliver forth-
with to the Sugamo Prison, the following described
person:
a) Ikuko (Iva) Toguri D’Aquino
b) Residing at 396 Ikijiri-machi, Setagaya-ku,
Tokyo, Japan
ce) Age 32 years.
2. Upon complaint and sufficient information
made to me by the Department of Justice, United
States Government, as contained in Radio WCL
20431, from the Adjutant General, Department of
the Army, dated 25 August, 1948, the person de-
scribed in paragraph 1 above is suspected of hav-
ing committed the following crime:
Treasonable conduct against the United States
Government during World War II.
3. You will make known to the person arrested,
in her native language, the contents of this docu-
ment.
4, Authority to arrest under this warrant ex-
pires 30 days from date herein.
68 Iva Ikuko Toguri D’ Aquino
Place: Tokyo, Japan.
Date: 26 August, 1948.
W. A. BEIDERLINDEN,
Brigadier General, United States Army, Assistant
Chief of Staff, G-1, General Headquarters, Far
Hast Command, APO 500.
(Copy)
Portuguese Consulate
Tokyo
To whom it may concern,
This is to certify that, Mr. Filipe Jairus
D’Aquino, born in Yokohama on 26th March, 1921,
married to Mrs. [kuko Toguri d’Aquino, is a Por-
tuguese national duly registered in this Consulate.
Portuguese Consulate in Tokyo, 4th November,
1948.
/s/ J. A. ABRANCHES PINTO,
J. A. ABRANCHES PINTO.
(Rubber Stamp) Consulado De Portugal Toquio.
(Rubber Stamp) Pagou ao cambio de 11.00 a
quantia de ¥275.00 (Es. 25$00) segundo o numero
26° da tabela, ficando esta importancia lancada no
livro de receita sob o Numero 259.
Toquio, 4 de Novembro, 1948.
/s/ A. PINTO.
(Stamp) Republica Portuguesa 25$¢00 Servico
Consular.
(Rubber Stamp) Consulado De Portugal Toquio.
vs. United States of America 69
(Translation )
(Rubber Stamp): Consulate of Portugal, Tokyo.
(Coat of Arms)
Consulate of Portugal
Tokyo
Service of the Portuguese Republic
Certificate of Consular Registry No. 190
The Consul of the Portuguese Republic in Tokyo
makes it known that Filipe Jairus d’Aquino, marital
status, married, profession, newspaperman, son of
Jose Filomeno d’Aquino and Maria d’Aquino, born
on the 26th day of March, 1921, a native of Yoko-
hama is a Portuguese citizen and is duly registered
in the Register of this Consulate under No. 5 of
Book No. 1 of inscriptions.
His last residence was Yokohama and he arrived
on (date in blank) at this consular district.
He resides in Tokyo, Setagaya-ku, 396 Ikejiri-
machi.
He proved his identity by previous consular cer-
tificate.
Consulate of Portugal in Tokyo, on June 30, 1947.
(Rubber Stamp): Consulate of Portugal, Tokyo
(Photograph)
(Rubber Stamp): Consulate of Portugal, Tokyo
70 Iva Ikuko Togurt D’ Aquino
Characteristics: Height, Hair, Face, Beard, Eyes,
Nose, Mouth, Color—Blank.
Signature of the person being registered
/s/ FILIPE J. d’AQUINO,
/s/ J. A. ABRANCHES PINTO,
Consul.
(Rubber Stamp): J. A. Abranches Pinto, Consul
This certificate is valid for the period of one year.
Paid at the rate of 0.80 the amount of Y9.60 in
accordance with Item 1 of the table of rates, this
amount being entered in the book of entries under
No. 1753.
Tokyo, June 30, 1947.
/3/ W. PANTO:
(Rubber Stamp): Consulate of Portugal, Tokyo
(Stamp): Portuguese Republic 12$00 Consular
Service.
(Rubber Stamp): Consulate of Portugal, Tokyo
(On the back of the certificate: Rubber stamp
with Oriental characters )
(Translation)
(Rubber stamp): Consulate of Portugal, Tokyo.
Consulate of Portugal
(Coat of Arms)
Tokyo
Service of the Portuguese Republic
Certificate of Consular Registry No. 159
The Consul of the Portuguese Republic in Tokyo
makes it known that Ikuko Toguri d’Aquino (by
vs. United States of America 71
marriage to Filipe J. d’Aquino), marital status,
married, profession, newspaperwoman, daughter of
Jun Toguri and Fumi Toguri, born on July 4, 1918,
a native of Los Angeles, California is a Portuguese
citizen and is duly registered in the Register of this
Consulate under No. 5 of Book No. 1 of inscriptions.
Her last residence was in (blank) and she ar-
rived in (date blank) at this consular district.
She resides in Setagaya-ku, Ikejirimachi, No. 396.
She proved her identity by previous consular cer-
tificate.
Consulate of Portugual in Tokyo, on September
10, 1946.
(Rubber Stamp): Consulate of Portugal, Tokyo
(Photograph)
(Rubber Stamp): Consulate of Portugal, Tokyo
Characteristics: Height, Hair, Face, Beard, Kyes,
Nose, Mouth, Color—Blank.
Signature of the person being registered
/s/ IKUKO TOGURI d’AQUINO,
/3s/ J. A. ABRANCHES PINTO,
Consul.
This certificate is valid for the period of one year.
Paid at the rate of 0.20 the amount of Y2.40 in
accordance with Item No. 1 of the table of rates,
72 Iva Ikuko Togurt D’ Aquino
this amount being entered in the book of entries
under No. 1694.
Tokyo, September 10, 1946.
/s/ A. PINTO.
(Stamp): Portuguese Republic 12$00 Consular
Service.
(Rubber Stamp): Consulate of Portugal, Tokyo
(On the back of the certificate: Rubber stamp
with Oriental characters)
(‘T'ranslation )
Consulate of Portugal
Tokyo
Affidavit
I, Joao do Amaral Abranches Pinto, Consul of
Portugal in Tokyo, upon request and because it is
the truth and to whom it may concern, do hereby
certify that, the books and documents belonging to
the files of the Consulate of Portugal in Yokohama
having been destroyed on the occasion of the earth-
quake and subsequent fire of September 1, in the
year 1923, it is not possible to furnish the record
of birth certificate of Filipe Jairus d’Aquino, mar-
ried, born in Yokohama on March 26, 1921, son of
Jose Filomeno d’Aquino and Maria d’Aquino.
vs. United States of America 73
Consulate of Portugal in Tokyo, November 4,
1948.
(Rubber Stamp): Consulate of Portugal, Tokyo
The Consul,
/s/ J. A. ABRANCHES PINTO,
J. A. ABRANCHES PINTO,
(Rubber stamp): Paid at the rate of 11.00 the
amount of Y275.00 (Escudos 25$00) in accordance
with item 26 of the table of rates, this amount being
entered in the book of entries under No. 257.
Tokyo, November 4, 1948.
Vs/ &. PINTO.
(Stamp): Portuguese Republic 25$00 Consular
Service
(Rubber Stamp): Consulate of Portugal, Tokyo
(Translation )
Consulate of Portugal
Tokyo
(Consular Seal over wax)
Vif ON, PINTO,
I, Joao do Amaral Abranches Pinto, Consul of
Portugal in Tokyo, Japan:
Do hereby certify that in the book of records and
transcriptions of marriages of this Consulate of
Portugal in Tokyo, on the back of page seven, page
eight and back, there appears the record of marriage
as follows:
74 Iva Ikuko Togurt D’ Aquino
Record No. 5—At the request of Filipe Jairus
Testus d’Aquino, I, Joao do Amaral Abranches
Pinto, Consul of Portugal in Tokyo, transcribe here-
under the following record of marriage, performed
in conformity with the canonic laws of the Catholic
Chapel annexed to Sophia University of Tokyo, in
Kojimachi-ku, Tokyo, on the nineteenth day of the
month of April, in the year nineteen hundred and
forty-five, before the Reverend Father J. B. Kraus,
S.J.
On the nineteenth day of the month of April in
the year nineteen hundred and forty-five, in the
chapel annexed to the Catholic Sophia University
of Tokyo, in Kojimachi-ku, Tokyo, before the Rev-
erend Father J. B. Kraus, S8.J., the following per-
formed their marriage: the bridegroom Filipe Jairus
Testus d’Aquino, newspaperman, residing in this
capital, single, a native of Yokohama, Japan, born
on the twenty-sixth day of March, in the year nine-
teen hundred and twenty-one, legitimate son of Jose
Filomeno d’Aquino and Maria d’Aquino, and the
bride: Ikuko ‘Toguri, residing in this capital, single,
North-American citizen, a native of Los Angeles,
California, United States of North America, born
on the fourth day of July, in the year nineteen hun-
dred and eighteen, legitimate daughter of Jun
Toguri and Fumi Toguri, her name becoming Ikuko
Toguri d’Aquino.
And for the records, I transcribe this marriage
record in accordance with the terms of Article 36
of Decree Number 29970, published in the Govern-
vs. Umted States of America 75
ment Diary Number 240 of October 13, of the year
1939, and in the Portuguese Civil Code, on presen-
tation of the proofs, which are annexed to this rec-
ord at the request of the bridegroom. Consulate of
Portugal in Tokyo, on the eighteenth day of the
Month of June, in the year nineteen hundred and
forty-five. Signature: J. A. Abranches Pinto, Con-
sul. There follows the receipt of consular emolu-
ments. Paid at the rate of exchange of 0.20 the
amount of Forty Escudos (y 8.00) in accordance
with item 20 of the table of rates, this amount being
entered into the book of entries under No. 1620.
Tokyo, June 18, 1945. Signed, A. Pinto. Fiscal
stamp of the Consular Service duly authenticated
by a rubber stamp reading:
Consulate of Portugal, Tokyo.
Nothing else appearing in the record that I am
consulting, I issued these presents, to which is affixed
a stamp of this Consulate, signed by me on the
fourth day of the month of November, in the year
nineteen hundred and forty-eight.
Consulate of Portugal in Tokyo, on November
4, 1948.
/3s/ J. A. ABRANCHES PINTO,
J. A. ABRANCHES PINTO,
Consul.
(Rubber Stamp): Consulate of Portugal, Tokvo
(Stamp): Portuguese Republic, 40$00, Consular
Service)
(Rubber stamp): Consulate of Portugal, Tokyo
76 Iva Ikuko Togurt D’ Aquino
(Rubber stamp): Paid at the rate of 11.00 the
amount of Y440.00 (Escudos 40$00) in accordance
with item 25 of the table of rates, this amount being
entered in the book of entries under number 258.
Tokyo, November 4, 1948.
/3/ A. PINTO.
AFFIDAVIT
State of California,
City and County of San Francisco—ss.
Manuel Reis, being by me first duly sworn, de-
poses and says: That he is a resident of the City
and County of San Francisco, State of California;
that he understands, reads and writes both the Por-
tuguese and the English languages, and is able to
translate writings from one into the other of said
languages; that he has translated the following
documents, to wit:
(a) Consular certificate of Filipe Jairus
d’ Aquino;
(b) Consular certificate of Ikuko Toguri
d’ Aquino ;
(c) Affidavit signed by the Consul of Portu-
gal in Tokyo;
(d) Marriage certificate of Filipe Jairus Testus
d’Aquino and Ikuko Toguri;
which documents are written in Portuguese; and
that the annexed is a true, complete and correct
vs. Umted States of America 17
translation into English of the said foregoing at-
tached documents in Portuguese, to the best of his
knowledge and ability.
/s/ MANUEL REIS.
Subscribed and sworn to before me, this 9 of
December, A.D. 1948.
[Seal]: /s/ H. M. ELISSAMBURU,
Notary Public.
My Commission expires Nov. 21, 1951.
[Note]: Translations only. Documents in Por-
tuguese not printed.
[Endorsed]: Filed Nov. 15, 1948.
[Title of District Court and Cause. ]
NOTICE OF MOTION FOR DISCOVERY
AND INSPECTION
To Hon. Frank J. Hennessy, U. 8. Attorney, At-
torney for Plaintiff:
You will please take notice that on Monday,
November , 1948, at the hour of 10 o’clock a.m.
of said day, or so soon thereafter as counsel can be
heard, the defendant will move the above-entitled
Court for an order requiring the plaintiff to permit
defendant to inspect and examine the statements,
documents, records and things specified in the within
Motion for Discovery and Inspection.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
78 Iva Ikuko Toguri D’ Aquino
[Title of District Court and Cause. ]
MOTION FOR DISCOVERY
AND INSPECTION
The defendant Iva Ikuko Toguri D’Aquino, by
her attorney, moves the Court for an order requir-
ing the United States of America, plaintiff, or the
attorney for plaintiff, to permit defendant to inspect
and copy or photograph the following designated
papers, documents or tangible objects, obtained from
others by seizure or process, which said papers,
documents or tangible objects, hereinafter specified,
are material to the preparation of defendant’s de-
fense, said discovery and inspection to be at a time,
place and in such manner and under such terms and
conditions as are just, to-wit:
(1) The statement, purporting to be made up, in
part, of an oral statement of the defendant obtained
from her and taken down in pencil by Sergeant
Page (Paige?) of the Counter Intelligence Corps
of the U. S. Kighth Army in Japan, acting under
the orders of Brigadier General Richard Thorpe
and Lt. Col. Turner of the said Corps and Army at
the Yokohama New Grand Hotel, Yokohama, Japan,
on or about September 6, 1945, which purports to
set forth a narration of defendant’s residence, em-
ployment, marriage to Philip (Felipe) J. D’Aquino, |
a national, citizen and domiciliary of Portugal re-
siding in Japan, and her activities in Japan from
vs. United States of America 79
July, 1941, to the date thereof, the defendant being
at said time and place held under restraint by said
Army authorities.
(2) The picture or pictures of the defendant and
General Hichelberger, U.S.A., taken at the order of
said General at the Yokohama New Grand Hotel,
Yokohama, Japan, on or about September 6, 1945.
(3) The motion picture film and sound record-
ing (sound film) synchronized therewith made of the
defendants at Radio Tokyo, Tokyo, Japan, on or
about October 1, 1945, on orders of the Signal
Corps of the U. S. Eighth Army in Japan, and the
radio script, consisting of several pages, then and
there prepared for the same by a Second Lieutenant,
U. 8. Army, whose name was Cadeson or Kadeson
or a name similarly pronounced, which defendant,
by said person, was ordered to read into said sound
film and thereafter at said time and place was or-
dered signed by defendant in her maiden name Iva
I. Toguri and also, in quotes, ‘‘Tokyo Rose,’’ to-
gether with several other pages of radio script then
and there obtained by said person from the de-
‘fendant.
(4) The typewritten, signed and witnessed state-
ment, purporting to be made up, in part, of an oral
statement obtained from the defendant and drawn
up from pencil or ink notes made by a Mr. Hetrick
who was in a U. S. Army uniform and either a
member of the Counter Intelligence Corps of the
U.S. Highth Army. in Japan, or attached thereto,
80 Iva Ikuko Togurt D’ Aquino
or a member of the U. S. Department of J ustice or
a member of the U. S. Federal Bureau of Investiga-
tion, at Sugamo Prison in Tokyo, Japan, on or
about December, 1945, the defendant then and there
being held under restraint and imprisoned by U. S.
authority which restraint and imprisonment com-
menced on October 17, 1945, and continued until
October 25, 1946, when defendant was released there-
from, together with the said notes, the said state-
ment purporting to set forth a narration of defend-
ant’s residence, marriage to Philip (Felipe) J.
D’Aquino, a national, citizen and domiciliary of
Portugal residing in Japan, and her employment
and activities in Japan from July 1941, to the date
thereof.
(5) The typewritten, signed and witnessed state-
ment, purporting to be made up, in part, of an oral
statement obtained from the defendant by and
drawn up by Fred Tillman, special agent of the
U. S. Federal Bureau of Investigation, from his
notes, he then being in U. 8S. Army uniform and
attached to the Counter Intelligence Corps or the
U. S. Eighth Army in Japan, and thereafter signed
by defendant at Sugamo Prison, Tokyo, Japan, on
or about April, 1946, together with the original notes
thereof, the defendant being held in restraint and
imprisoned at said Sugamo Prison at said times by
the United States, said statement purporting to
narrate the history of defendant’s residence, mar-
riage and employment in Japan from July, 1941, to
the date thereof.
vs. United States of America 81
(6) ‘The photostat copy of notes purporting to
be made by Clark Lee and purporting to be or to
relate to an interview of the defendant by Harry
Brundidge and Clark Lee, newspaper correspond-
ents attached to the U. 8. Eighth Army in Tokyo,
Japan, purporting to have taken place on or about
September 2, 1945, at the Imperial Hotel in Tokyo,
Japan, said photostat copy of notes being initialed
‘‘TD’A”’ on each page thereof and signed in defend-
ant’s name on or about March 26, 1948, at the build-
ing of General Headquarters of the United States
Army, Tokyo, Japan, to which defendant forcibly
was brought by agents of the United States from
her home and sick bed in Tokyo, Japan, the said
Harry Brundidge and one, John Hogan, a special
assistant to the U. 8S. Attorney General, being pres-
ent at said time and place, said photostat copy of
notes purporting to relate to the history and activi-
ties of defendant in Japan from 1941 to the date
thereof.
(7) The package of typewriter sized foolscap
paper, consisting of a series or number of original
and perhaps, a number of carbon copies, of type-
written pages or script, approximately one-half inch
thick, obtained from the defendant by agents of
the Counter Intelligence Corps of the U. 8S. Eighth
Army in Japan, namely, Sergeant Page (Paige?)
for Lt. Col. Turner at Yokohama, Japan, on or
about September 15, 1945, said package of papers
thereafter being in the possession of Fred Tillman,
82 Iva Ikuko Togurt D’ Aquino
special agent of the U. S. Federal Bureau of Inves-
tigation, who, on or about April, 1946, at Sugamo
Prison, Tokyo, Japan, obtained defendant’s initial-
ing of each page thereof while she was held in
restraint and duress at said prison by United States
authority, said papers in said package of papers
being in the nature of radio script purporting to
have been prepared for broadcast from Radio
Tokyo.
(8) Any and all phonographic tape, wire, elec-
trical, magnetic, sound or other types of records,
recordings or transcriptions made, manufactured,
received or intercepted, and in the possession of or
available to plaintiff, of any and all of the Zero
Hour programs of Radio Tokyo or radio station
JOAK on which the prosecution asserts or will
assert at any trial herein that the defendant or per-
son designated or known or referred to as ‘‘Orphan
_ Ann,’”’ “Orphan Annie”’ or “‘Tokyo Rose’’ spoke,
talked, recorded, announced or broadcasted any
statement, matter or thing, together with any and
all of the musical records or pieces or recordings
thereof which the prosecution asserts or will assert
at any trial herein that such person played, an-
nounced or broadeast thereon, covering the period
of time from or about November 1, 1943, to and
including August 15, 1945.
(9) Any and all recordings of the defendant’s
voice made on or about January 6, 1946, at Radio
Tokyo, in Tokyo, Japan, obtained from the defend-
ant by order of the Counter Intelligence Corps of
vs. United States of America 83
the U. S. Eighth Army in Japan, which the prose-
cution asserts or will assert at any trial herein to be
a recording of defendant’s voice.
(10) Any and all recordings of the defendant’s
voice made on or about February, 1948, at Radio
Tokyo, in Tokyo, Japan, obtained from the defend-
ant by order of the Counter Intelligence Corps of
the U. 8. Eighth Army in Japan, which the prose-
ecution asserts or will assert at any trial herein to
be a recording of defendant’s voice.
(11) Several pages of handwritten script on
typewriter sized foolsecap paper, the contents pur-
porting to be radio seript, obtained from the defend-
ant at Yokohama Prison, Yokohama, Japan, by Col.
Robert Hardy, U.S.A., officer in charge of that
prison, on or about October 17, 1945, which purports
to be radio seript prepared for broadcast.
(12) Any and all other papers, documents, rec-
ords and things the United States or its agents
obtained, if any, from the defendant, her husband
or her home and residence situated at No. 396 Ikejiri
Machi, Setagaya Ku, Tokyo, Japan during the en-
forced absence therefrom of the defendant, which
has or may have any bearing on any issues involved
in this cause whether or not the plaintiff or its
agents intend to use or offer any such evidence at
any trial of the issues herein.
Inspection of each and all of the above-mentioned
statements, documents and things, obtained from de-
fendant as above stated, are or may be material to
84 Iva Ikuko Togurt D’Aquino
the preparation of defendant’s defense to the indict-
ment herein and are in the possession of or avail-
able to the plaintiff, or its agents, representatives
and attorney.
/38/ WAYNE M. COLLINS,
Attorney for Defendant.
State of California,
City and County of San Francisco—ss.
Wayne M. Collins being first duly sworn deposes
and says: that he is attorney of reeord for Iva
Ikuko Toguri D’Aquino, defendant herein; that he
has read the foregoing Motion for Discovery and
Inspection and knows the contents thereof; that as
such attorney he has investigated the facts concern-
ing each of the twelve statements, documents and
records mentioned therein; that he verily believes
the facts to be true which therein are recited or
narrated in said motion; that each of the items
therein sought to be inspected, examined and copied
or photographed are, for the reasons therein stated,
material to the preparation of defendant’s defense
to the charges brought against her in the indictment
in said cause and he verily believes that defendant’s
request and motion for discovery and inspection
thereof is reasonable.
/s/ WAYNE M. COLLINS.
Subscribed and sworn to before me this 15th
day of November, 1948.
[Seal] /s/ JANE M. DOUGHERTY,
Notary Public in and for the City and County of
San Francisco, State of California.
vs. United States of America 85
Points and Authorities in Support of Motion
for Discovery and Inspection
‘The’ motion for discovery and inspection of the
statements, documents and things set forth in said
motion is authorized specifically by the new rule of
criminal procedure, Rule 16 of the Rules of Crimi-
nal Procedure for the District Courts of the United
States in 1946.
See also, U.S. v. B. Goedde & Co., 40 Fed. Sup.
023, 934, decided in 1941 and so authorizing before
the new rule became effective.
Respectfully submitted,
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
Receipt of copy acknowleged.
[Endorsed]: Filed November 15, 1948.
[Title of District Court and Cause. ]
NOTICE OF MOTION TO DISMISS INDICT-
MENT ON DEFENSES AND OBJECTIONS
CAPABLE OF DETERMINATION WITH-
OUT TRIAL OF GENERAL ISSUE
To Hon. Frank J. Hennessy, U. S. Attorney, At-
torney for Plaintiff:
You will please take notice that on Monday, No-
vember , 1948, at the hour of 10 o’clock a.m. of
said day, or so soon thereafter as counsel can be
86 Iva Ikuko Togurt D’ Aquino
heard, the defendant will move the above-entitled
Court to dismiss the indictment herein upon the
grounds and for the reasons set forth in the within
Motion to Dismiss Indictment on Defenses and
Objections Capable of Determination Without Trial
of General Issue.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
[Title of District Court and Cause. |
MOTION TO DISMISS INDICTMENT ON DE-
FENSES AND OBJECTIONS CAPABLE
OF DETERMINATION WITHOUT TRIAL
OF GENERAL ISSUE UNDER RULE 12,
RULES OF CRIMINAL PROCEDURE
The defendant moves the court to quash and dis-
miss the indictment upon a determination of each |
and all of the following defenses and objections to
the indictment which are capable of determination
without a trial of the general issue, upon each and
all of the following grounds and for the following
reasons, to-wit: |
(1) The eause is barred by the provisions of the
5th Amendment by reason of the prior acquittal of
the defendant by the United States on or about
September 6, 1945, on the same charges contained
in the indictment herein which were preferred
against her by the United States, in Japan, on or
about September 95, 1945.
vs. United States of America 87
(2) The cause is barred by the provisions of the
oth Amendment by reason of the prior acquittal of
the defendant by the United States on or about
October 25, 1946, on the same charges contained in
the indictment herein which were preferred against
her by the United States, in Japan, on or about
October 17, 1945.
(3) The cause is barred by the provisions of
the 5th Amendment against subjecting the defend-
ant to double jeopardy of life or limb for the same
offense by reason of the fact that the defendant
previous to the time this indictment was returned
herein, to wit, on September 5, 1945, was put in
jeopardy by the United States for the same offense
alleged in the indictment herein.
(4) ‘The cause is barred by the provisions of the
oth Amendment against subjecting the defendant to
double jeopardy of life or limb for the same offense
by reason of the fact that the defendant previous
to the time this indictment was returned herein, to
wit, on October 17, 1945, and thereafter unto Oc-
tober 25, 1946, was put in jeopardy by the United
States for the same offense alleged in the indictment
herein.
(5) The cause is barred by the provisions of the
oth Amendment by reason of the prior conviction
of the defendant, without trial, on or about October
17, 1945, by the United States on the same charges
eontained in the indictment herein which were pre-
ferred against her by the United States, in Japan,
88 Iva Ikuko Toguri D’ Aquino
on or about said October 17, 1945, followed by her
sentence, commitment to and imprisonment, by the
United States, in the Yokohama Prison, Yokohama,
Japan, on said date and transfer therefrom on
November 16, 1945, to the Sugamo Prison, Tokyo,
Japan, by the United States, her jailer, and her
final release and discharge therefrom by the United
States on October 25, 1946.
(6) The cause is barred by reason of the fact
that the issues of fact and of law involved herein
are res judicata because the defendant heretofore,
on or about September 6, 1945, was acquitted by the
United States in Japan of the identical charges
herein which there were brought against her on
September 5, 1945, by the United States.
(7) The cause is barred by reason of the fact
that the issues of fact and of law involved herein
are res judicata because the defendant heretofore,
on or about October 25, 1946, was acquitted by the
United States in Japan of the identical charges
herein which there were brought against her on
October 17, 1945, by the United States.
(8) The cause is barred by reason of the fact
that the issues of fact and of law involved herein
are res judicata because the defendant heretofore,
on or about September 5, 1945, was convicted by the
United States in Japan of the identical charges
herein which there were brought against her on
that date by the United States.
us. Umited States of America 89
(9) The cause is barred by reason of the fact
that the issues of fact and of law involved herein
are res judicata because the defendant theretofore,
on or about October 25, 1946, was convicted by the
United States in Japan of the identical charges
herein which there were brought against her on
October 17, 1945, by the United States which there-
upon imprisoned her thereon for one year, one week
and one day until October 25, 1946, in Japan and
thereupon discharged her from imprisonment.
(10) The cause is barred by the fact that the
United States, in violation of the guaranty of the
6th Amendment, safeguarded by the due process
clause of the 5th Amendment, long has deprived the
defendant of a ‘‘speedy,’’ public, fair and impartial
trial, of being informed of the nature and cause of
any accusation against her, of being confronted with
any witnesses against her, of having compulsory or
any process for obtaining witnesses 1n her favor and
of the assistance of counsel for her defense by rea-
son of the facts that the defendant, on or about
October 17, 1945, was accused and charged by the
United States, in Japan, of the commission of the
same offense and charges contained in the indict-
ment herein and, thereafter, on said October 17,
1945, thereon was sentenced and committed to and
imprisoned by the United States in the Yokohama
Prison, Yokohama, Japan, from that date until
November 16, 1945, when she was transferred to the
Sugamo Prison, Tokyo, Japan, where she continu-
90 Iva Ikuko Togurt D’ Aquino
ously was imprisoned by her jailor, the United
States, until October 25, 1946, when she was released
and discharged from custody by the United States
and, thereafter, on August 26, 1948, the defendant
again was re-arrested at her home in Tokyo, Japan,
by the United States and ever since then continu-
ously has been imprisoned by the United States and,
on September 25, 1948, forcibly was brought to San
Francisco, in custody, from Japan by the United
States and ever since then has been and now is im-
prisoned by the United States, all of which has
operated to deprive and has deprived defendant
of said constitutional guarantees and has operated
to deprive and has deprived and caused this court
to lose jurisdiction over the cause and over the
person of the defendant.
(11) The cause is barred by virtue of the fact
that the defendant is not a citizen or subject of the
United States but is and ever since on or about
April 19, 1945, has been a national, citizen and
domiciliary of Portugal and lawfully a permanent
resident of Japan by virtue of her marriage to
Felipe (Philip) J. D’Aquino, an adult national,
citizen and domiciliary of Portugal who then and
ever since then has been and now is a lawful and
permanent resident of Tokyo, Japan, and, in con-
sequence, the court has neither lawful jurisdiction
over the person of the defendant nor over the cause.
(12) The cause is barred by the fact that, if the
defendant at any time was a national and citizen
of the United States, her employment, as alleged in
vs. United States of America 91
the indictment, from on or about November 1, 1943,
to and including August 13, 1948, by the Broad-
easting Corporation of Japan, therein alleged to
have been a company controlled by the Imperial
Japanese Government, in the position therein re-
ferred to, in and of itself, constituted an act of
expatriation and operated to cause her to lose her
said United States nationality and citizenship and
to become an expatriate in Japan and, in conse-
quence, a person outside the lawful jurisdiction of
the United States and of this court and not subject
to the jurisdiction of the United States and of this
court.
(13) Neither this judicial district nor this court
is the proper venue for the return of the indictment
herein.
(14) Neither this judicial district nor this court
is the proper venue for the trial of the cause.
(15) The court has no jurisdiction over the per-
son of the defendant and could not acquire any
such jurisdiction by virtue of the fact that she is a
national and citizen of Portugal, domiciled in Por-
tugal, and a lawful and permanent resident of
Tokyo, Japan, who was kidnapped unlawfully in
Japan by the United States and forcibly brought to
San Francisco by the United States.
(16) The court has no jurisdiction over the cause
and could not acquire any such jurisdiction bv virtue
of the fact that she is a national and citizen of Por-
92 Iva Ikuko Togurt D’ Aquino
tugal, domiciled in Portugal, and a lawful and per-
manent resident of Tokyo, Japan, who unlawfully
was seized in Japan by the United States and
forcibly brought to San Francisco by the United
States.
(17) The jurisdiction over the person of the
defendant is lodged in the Government of Portugal
to the exclusion of the United States and this court.
(18) The jurisdiction over the cause, if any
exists, is lodged in the Government of Portugal to
the exclusion of the United States and this court.
(19) Jurisdiction over the defendant is lodged
in the War Department or the military commissions,
tribunals or war courts set up by the U. 8. and its
Allies in Japan, to the exclusion of the Attorney
General and this court.
(20) Jurisdiction of the offense alleged in the
indictment is lodged in the War Department or the
military commissions, tribunals or war courts set up
by the United States and its Allies in Japan, to the
exclusion of the Attorney General and this court.
(21) ‘The jurisdiction over the person of the de-
fendant is lodged in the Government of Japan to
the exclusion of the United States and this court.
(22) The jurisdiction over the cause, if any
exists, is lodged in the Government of Japan to the
exclusion of the United States and this court.
(23) Neither the United States nor this court
has jurisdiction over the person of the defendant
us. United States of America 93
for lack of consent to such jurisdiction on the part
of the Government of Portugal, the Government of
Japan, the Allied Powers in Japan and the United
States Military Government in Japan, and on the
part of each of them.
(24) Neither the United States nor this court
has jurisdiction over the cause for lack of the con-
sent to such jurisdiction of the Government of Por-
tugal, the Government of Japan, the Allied Powers
in Japan and the United States Military Govern-
ment in Japan, and of the consent of each of them.
(25) The cause is barred by the limitation
against prosecution, trial and punishment provisions
of Title 18, USCA, Section 582, providing that ‘‘No
person shall be prosecuted, tried, or punished for
any offense, not capital, except as provided in sec-
tion 1046 (section 584 of this title), unless the in-
dictment is found, or the information is instituted,
within three years next after such offense shall have
been committed,’’ and by the provisions of Title 18
USCA, See. 3282, which set up a limitation against
prosecution, trial and punishment for offenses not
capital unless the indictment is found within three
years next after such offense shall have been com-
mitted.
(26) ‘The cause is barred by the limitation of
prosecution, trial and punishment provisions of Title
18 USCA, Section 581, which provides that ‘‘No
person shall be prosecuted, tried, or punished for
treason or other capital offense, wilful murder ex-
94 Iva Ikuko Toguri D’ Aquino
cepted, unless the indictment is found within three
years next after such treason or capital offense is
done or committed,’’ said statute not being repealed
by the Act of Aug. 4, 1939, c. 419, see. 1, 53 Stat.
1198, codified as Title 18 USCA, secs. 581a and 581b
and See. 3281, effective Sept. 1, 1948, which au-
thorize an indictment for any offense punishable by
death to be found at any time without regard to
any statute of limitations but, clearly does not au-
thorize either a prosecution, trial or punishment for
treason committed three years before indictment
found, treason not necessarily being an offense pun-
ishable by death, those new sections merely author-
izing a grand jury to return an indictment in such
a case.
This motion will be made upon the indictment,
this motion, notice thereof, affidavits, documents,
records and papers in support thereof to be sub-
mitted thereon, poimts and authorities, motion to
dismiss the indictment filed herein concurrently
herewith, and all other pleadings, papers and files
herein and upon any evidence that may be adduced
in support of this motion at the time the same is
heard.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
[Endorsed]: Filed November 15, 1948.
vs. United States of America 95
Affidavit in Support of Motions to Dismiss
State of California,
Northern District of California,
City and County of San Francisco—ss.
Jun Toguri, being first duly sworn, deposes and
says:
My name is Jun Toguri. I am a widower. I am
66 years of age. I am a grocer by occupation. My
place of business is situated at 1128 North Clark
Street, Chicago, Ill. I reside at 1012 North Clark
Street, Chicago, I]l., which has been my home ever
since September, 1944.
I was born at Yamanashi Ken, in Japan, on
March 25, 1882, of full Japanese blood, and ever
since then I have been and now am a national and
citizen of Japan. I graduated from the Jikyo Kan
school in Yamanashi Ken, Japan.
On or about June 8, 1907, I was lawfully united
in marriage, at Yokohama, Japan, to Fumi limuro,
a full blooded Japanese who was born in Tokyo,
Japan, on or about February 14, 1888, and who,
continuously until her death at the Tulare Assembly
Center, Tulare County, California, on May 24, 1942,
Was a national and citizen of Japan.
I was lawfully admitted to the United States for
permanent residence on or about September, 1899,
at Seattle, Washington. Fumi Toguri, nee limuro,
my said wife, now deceased, was lawfully admitted
to the United States for permanent residence on
or about November 1, 1913, at San Francisco, Cali-
fornia.
96 Iva Ikuko Toguri D’ Aquino
Iva Ikuko Toguri d’Aquino, the defendant in
criminal proceeding No. 31712 R now pending in
the United States District Court for the Northern
District of California, Southern Division, which was
filed therein on October 8, 1948, is my natural
daughter and the natural daughter of my said wife,
Fumi Toguri, nee Iimuro, deceased, born during
wedlock.
My daughter, Iva Ikuko Toguri d’Aquino, ever
since July 25, 1941, has been and now is a resident
of Tokyo, Japan, albeit since on or about Septem-
ber 3, 1948, she has not physically been present in
Japan by virtue of her removal therefrom by agents
of the United States to San Francisco, California.
On April 19, 1945, my said daughter, Iva Ikuko
Toguri, then and now an adult female, lawfully was
united in marriage to one, Felipe J. d’Aquino, an
adult male, at the Sofia University Chapel in Tokyo,
Japan, according to the rites of the Roman Catholic
Church and faith of which Church and faith each
of them then was and now is a member. That said
marriage then was and ever since then has been
and now is lawful according to the law of Portugal
and of Japan and, as such, is recognized as being
lawful by the law of the United States. Ever since
her said marriage said Iva Ikuko Toguri d’Aquino,
my daughter, has resided continuously with her said
husband at their home and residence situated at
No. 396 Ikejiri Machi, Setagaya-Ku, Tokyo, Japan.
The said Felipe J. d’Aquino, who is my son-in-
law by virtue of his said marriage to my said daugh-
vs. United States of America 97
ter, was born at Yokohama, Japan, on or about
March 26, 1919. He is a linotype operator and proof
reader by occupation.
The father of said Felipe J. d’Aquino is Jose F.
d’Aquino who resides in Atsugi, Kanagawa Ken,
Japan, and is a person of half Portuguese blood
derived from his father, the paternal grandfather
of said Felipe J. d’Aquino, who was a person of
full Portuguese blood and a national, citizen and
domiciliary of Portugal, and said Jose F. d’Aquino
ever since his birth has been and now is a national,
citizen and domiciliary of Portugal and is a resident
of Japan. The mother of said Felipe J. d’Aquino
is Maria d’Aquino who resides with her husband,
the said Jose F. d’Aquino, at Atsugi, Kanagawa
Ken, Japan, and is a person of full Japanese blood,
maternally and paternally, and is a national, citizen
and domiciliary of Portugal, by reason of her said
marriage to her said Portuguese husband. The said
Jose F. d’Aquino and the said Maria d’Aquino, his
wife, ever since the birth of their natural son, the
said Felipe J. d’Aquino, have been and now are
lawful residents of Japan. "The said Felipe J.
d’Aquino is 4th Portuguese blood and 34ths Japa-
nese blood.
The said Felipe J. d’Aquino, according to the
law of Portugal, as also the law of Japan, ever since
his said birth has been and now is a national, citi-
zen and domiciliary of Portugal, derived from his
said father and mother, to the exclusion of any
elaim of any government, other than Portugal, to
98 Iva Ikuko Togurt D’ Aquino
his allegiance; and, ever since his said birth he has
been and now is a lawful resident of Japan, pres-
ently residing therein at No. 396 Ikejiri Machi,
Setagaya-Ku, Tokyo, Japan, the home and residence
of said Felipe J. d’Aquino and said Iva Ikuko
Toguri d’Aquino, his wife. The said exclusive Por-
tuguese nationality, citizenship and domicile of said
Felipe J. d’Aquino ever since his birth continuously
has been and now is lawful and valid according to
the law of Portugal and of Japan, as also according
to the law of the United States.
/3/ JUN TOGURI,
Affiant.
Subscribed and sworn to before me this 15th
day of November, 1948.
[Seal] /s/ JANE M. DOUGHERTY,
Notary Public in and for the City and County of
San Francisco, State of California.
Receipt of copy acknowledged.
[Endorsed]: Filed November 15, 1948.
[Title of District Court and Cause. ]
NOTICE OF MOTION FOR
BILL OF PARTICULARS
To Hon. Frank J. Hennessy, U. 8S. Attorney, At-
torney for Plaintiff:
You will please take notice that on Monday, N 0-
vember , 1948, at the hour of 10 o’clock a.m. of
vs. United States of America 99
said day, or so soon thereafter as counsel can be
heard, the defendant will move the above-entitled
Court for an order requiring the plaintiff to furnish
defendant with the Bill of Particulars as set forth
in the within Motion for Bill of Particulars.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
[Title of District Court and Cause. ]
MOTION FOR BILL OF PARTICULARS
Iva Ikuko Toguri D’Aquino, defendant, by her
attorney, moves the Court for an order requiring
the United States of America, plaintiff, to file and
furnish her with a Bill of Particulars, acts, facts
and things as to the following matters which are
so vague, indefinite, uncertain, ambiguous, evasive,
equivocal and contradictory, and improperly and
generally alleged, or attempted to be alleged, in the
indictment returned against her in this cause, or
omitted therefrom, in the following matters and
respects and for the following reasons, to-wit:
1. A statement of the particular place or places
to which the word ‘‘elsewhere’’ on the last line of
paragraph 2 on line 13 of page 2 of the indictment
refers.
2. A statement of the particular place or places
to which the word “‘elsewhere’’ in paragraph 3(a)
on line 25 of page 2 of the indictment refers.
100 Iva Ikuko Toguri D’ Aquino
3. <A statement of the particular place or places
to which the word ‘‘elsewhere’’ in paragraph 3(b)
on line 29 of page 2 of the indictment refers.
The defendant states that the words ‘‘elsewhere’’
in each of the three instances above referred to is
a word of broad and general meaning and is so un-
specific and uncertain as to be susceptible of differ-
ent interpretations and, consequently, in nowlse
advises or informs her as to its use, meaning, sig-
nificance and relevancy to the purported cause of
action.
4. A statement of the respect or respects in
which the Broadcasting Corporation of Japan was
controlled by the Imperial Japanese Government, as
alleged in paragraph 3(a) on page 2 of the indict-
ment, or the meaning of the word ‘‘controlled’’ as
therein used.
The defendant states that the word ‘‘controlled”’
in the phrase ‘‘the Broadcasting Corporation of
Japan, a company controlled by the Imperial Japa-
nese Government,’’ in paragraph 3(a) on page 2
of the indictment, is a word of broad and general
meaning and is so unspecific and uncertain as to be
susceptible of different meanings and interpreta-
tions and, consequently, in nowise advises or informs
her of the nature and facts of said control or of its
relevancy to the purported cause of action.
5. A statement whether or not the alleged ad-
herence of the defendant and the giving of aid and
us. Umted States of America 101
comfort to the enemies specified generally in para-
graph 3 on pages 2 and 3 of the indictment actually
had the effect or result of aiding and comforting the
enemies of the United States and, if so, in what
respect or respects.
The allegations of adherence to the enemies by
giving them aid and comfort in paragraph 3(a) on
page 2 of the indictment are couched in general
language and are so broad and of such a general
meaning and significance and are so unspecific and
uncertain as to the particular facts, nature and char-
acter thereof as to leave the defendant completely
in the dark as to the facts, conduct or things con-
stituting the alleged adherence, aid and comfort:
Further, nowhere therein or elsewhere in the indict-
ment is there any allegation whatever that alleged
adherence, aid and comfort of the defendant to the
enemies, so generally pleaded in the indictment,
actually had the effect or result of destroying con-
fidence in the war effort of the United States and
its Allies, and of undermining and lowering Ameri-
ean and Allied military morale, and of creating nos-
talgia in the minds of the American and Allied
forces, and of creating war weariness among mem-
bers of the American and Allied armed forces, and
of discouraging members of the American and
Allied armed forces, and of impairing the capacity
of the United States to wage war against its ene-
mies, or of any of said things. The indictment is
wholly deficient in said respects. Those very ma-
102 Iva Ikuko Togurt D’ Aquino
terial allegations are entirely missing in the indict-
ment and, in consequence, if anything is pleaded
therein it is simply that the defendant entertained
a mental intent to commit or merely attempted trea-
son. However, neither of such offenses is known to
American law. In consequence, the language in said
paragraph 3(a) is entirely too general and sets forth
nothing but broad and general acts and conduct
which, in themselves, are entirely harmless and inno-
cent and, therefore, utterly insufficient to constitute
the crime attempted to be charged. Although the
indictment alleges legal conclusions of a crime of
treason it fails to set forth any ultimate facets con-
stituting such a crime and is utterly lacking in any
allegation of facts charging or showing that any act
or conduct of the defendant had any such effect or
result and, consequently, fails to allege a completed
[copy missing] The type of the pleading contained
in the indictment would compel the defendant, the
court and jury to resort to speculation to determine
the nature of the accusation and the ultimate facts
constituting the purported crime. In addtiion, it in
nowise informs the defendant of the nature and
facts of the crime it attempts to allege and wholly
fails to allege that the purported crime was com-
pleted.
6. A statement of the precise or approximate
time or times the defendant worked, announced and
wrote radio script as alleged in paragraph 3(a) on
page 2 of the indictment.
vs. United States of America 103
7. <A statement of the nature, character and con-
tents, in substance or effect, of the statements made
by defendant as a radio speaker, radio announcer
and broadcaster of recorded music alleged in para-
graph 3(a) on page 2 of the indictment.
8. A statement of the nature, character and con-
tents, in substance or effect, of the radio script pre-
pared or composed by the defendant and of her
talks and announcements and announcements of
radio script alleged in paragraph 3(a) on page 2
of the indictment.
9. A statement of the nature and contents, in
substance or effect, of the announcements and intro-
ductions made by the defendant of musical record-
ings and talks for broadcast by radio from Japan
alleged in paragraph 3(a) on page 2 of the indict-
ment, and the names of the record musical pieces or
recordings broadcast by radio.
Neither the precise nor the approximate time or
times of the occurrences of the matters alleged in
paragraph 3(a) of the indictment are set forth
therein nor is there any statement therein of the
nature, character and contents of the acts and con-
duct of the defendant alleged to have been made by
her as a radio speaker, announcer and broadeaster,
that is to say, of the material ultimate facts. Neither
the nature, character nor contents of the radio
script prepared and composed by the defendant or
of her talks and announcements, and announcements
104 Iva Ikuko Toguri D’ Aquino
of radio script, or the names of the musical record-
ings she is asserted to have broadcast, are set forth
therein. In consequence, the defendant cannot ascer-
tain therefrom and is neither advised nor informed
thereby in what respect or respects, if any, in which
the radio script, announcing and broadcasting, and
musical recordings broadcasted were unlawful and
is neither advised nor informed as to the nature
and character thereof. She, therefore, requests that
she be advised specifically as to these particulars
and of what is intended to be charged against her,
and that she be supplied with copies of the said
seript with which she will be confronted at the trial
in the prosecution’s attempt to prove these charges
and with a statement, in substance or effect, of the
precise and actual nature, character and contents
of the talks, announcements and broadcasts she is
alleged to have made which the prosecution will at-
tempt to prove at the trial and the respects and
particulars wherein the same were treasonable or
are asserted or will be asserted to be of a treasonable
nature at any trial of the issues which may be had
herein.
10. A statement of the name of the ‘‘another
person,’’ mentioned in overt act No. 1 in paragraph
1 on page 3 of the indictment, with whom the de-
fendant discussed the proposed participation of de-
fendant in the radio broadeasting program therein
mentioned.
vs. United States of America 105
The name of the ‘‘another person”’ is not alleged
in the indictment to be unknown to the grand jurors
and, in consequence, it is to be presumed that the
name of such person actually was known to them
and to plaintiff and that it, therefore, should have
been alleged therein. Without the name of the per-
son and the precise or approximate time the discus-
sion was had being revealed (the time there specified
extends over a period of two calendar months) the
defendant is not informed either when or with whom
she is charged with having the discussion and is
unable to ascertain whether she at any time had a
discussion with any specific person and is neither
advised nor informed as to what the allegation
means.
11. A statement of the precise or approximate
time when overt act No. 1, mentioned in paragraph
1 on page 3 of the indictment, took place together
with a statement of the words spoken by each, in
substance or effect, in the discussion therein men-
tioned and the nature of the discussion.
12. <A statement of the precise or approximate
time when overt act No. 2, mentioned in paragraph
2 on page 3 of the indictment, took place, together
with the names and addresses of the employees of
the Broadcasting Corporation of Japan with whom
the defendant is alleged to have had the discussion
therein alleged, together with a statement of the
words spoken, in substance or effect, by each of them
and defendant, in that discussion.
106 Iva Ikuko Toguri D’ Aquino
13. A statement of the precise or approximate
time when overt act No. 3, mentioned in paragraph
2 on page 4 of the indictment, took place, together
with the words spoken by defendant into the micro-
phone, in substance or effect, and the nature of the
statements made.
14. A statement of the precise or approximate
time when overt act No. 4, mentioned in paragraph
4 on page 4 of the indictment, took place, together
with the words spoken by defendant, in substance
or effect, into the microphone and also a statement,
in substance or effect, of the precise reference al-
leged therein to have been made by her concerning
enemies of Japan.
15. A statement of the precise or approximate
time when overt act No. 5, mentioned in paragraph
) on page 4 of the indictment, took place, together
with the nature and contents, in substance and ef-
fect, of the script prepared for subsequent radio
broadeast. concerning the loss of ships, the ships to
which it referred and the precise statement which
was made concerning the loss of ships, either in sub-
stance or effect.
16. <A statement of the precise or approximate
time when overt act No. 6, mentioned in paragraph
6 on page 4 of the indictment, took place, together
with the words which were spoken, in substance or
effect, concerning the loss of ships, together with a
vs. United States of America 107
statement of what ships the statement referred to.
17. A statement of the precise or approximate
time when overt act No. 7, mentioned in paragraph
7 on page 4 of the indictment, took place, together
wth a statement of the nature and contents, in sub-
stance or effect, of the radio script therein alleged
to have been prepared.
18. A statement of the precise or approximate
time when overt act No. 8, mentioned in paragraph
8 on page 4 of the indictment, took place, together
with the words, in substance or effect, which were
spoken into the microphone and the names of each
of the persons who engaged in the entertainment
dialogue therein mentioned and the words spoken,
in substance or effect, by each of the participants
in the entertainment dialogue therein mentioned.
Each of the eight acts alleged in the indictment
to be overt acts are alleged in terms so general,
broad, loose, uncertain, unspecific, unrevealing and
concealing as to time and as to facts sought to be
elicited in the eight particulars hereinabove set
forth that they are susceptible to nothing but specu-
lation and guesswork. Each of those overt acts as
alleged in the indictment are allegations of matters
which on their face are absolutely innocent and in-
nocuous matters. Inasmuch as these special allega-
tions of overt acts modify and control the general
allegations of the purported crime and are innocent
on their face the indictment in nowise advises or
108 Iva Ikuko Toguri D’ Aquino
informs the defendant of the accusation against her
but leaves all these important matters to the im-
agination.
19. A statement of the times and places where
defendant was arrested in Japan and confined to
prison by agents of the United States, and there-
after released therefrom, the periods of time of said
imprisonments, the authority and purpose for the
said arrests and commitments to imprisonment and
discharges therefrom, and a statement of the pur-
pose for which and the authority under which de-
fendant was arrested in Japan and brought to San
Francisco in this Federal Judicial District shortly
prior to the date of the return of the indictment
herein, as alleged in the final paragraph on page 4
of the indictment, and also a statement whether or
not each of her said arrests and imprisonments and
releases therefrom, and her removal from Japan to
San Francisco, and each of said things, were done
with the consent and authority of the Allied Powers,
the government of Portugal, and the government of
Japan or of any of said sovereign powers.
Inasmuch as the foregoing particulars, facts and
details are not fully alleged in the indictment the
defendant is neither advised nor informed thereby
of the legal authority, if any existed at the time of
said occurrences or now exists, for her arrests and
imprisonments in Japan and discharges therefrom
and her removal to San Francisco and whether this
court has acquired and has any jurisdiction over
us. Umted States of America 109
her person and over the cause, it appearing on the
face of the indictment that the arrest of defendant
in Japan and her removal to this jurisdiction was
an illegal extraterritorial act of the United States
wholly outside its jurisdiction which did not and
could not confer jurisdiction over the defendant and
of the cause upon this court or confer lawful venue
hereof upon this court. The indictment fails to set
forth and, therefore, to inform the defendant and
this court whether or not the arrests, imprisonments
and removal of defendant from Japan to the United
States was authorized by or consented to by the
Allied Powers, the government of Portugal, and the
government of Japan, or any of said soverign pow-
ers, In consequence of which, neither the defendant
nor the court can ascertain what authority, if any,
existed therefor or ascertain whether the court has
jurisdiction over the defendant or over the cause.
20. A statement whether the employment of de-
fendant as a radio operator, radio announcer, radio
script writer and broadcaster of recorded music, as
alleged in paragraph 3(a) of the indictment, was or
was not in a capacity for which only Japanese na-
tionals were eligible.
It cannot be ascertained therefrom whether or not
the said acceptance of employment by defendant in
said corporation was in a capacity for which Japa-
nese nationals only were eligible, a fact which is
material to the cause and jurisdiction of the court as
bearing on the legal conclusion that such a type of
employment in and of itself constituted an act of
110 Iva Ikuko Toguri D’ Aquino
expatriation according to our law whereby a person
thereby loses the nationality then possessed and
thereby becomes either a foreign subject or acquires
a foreign nationality, by operation of U. S. law.
21. A statement of the facts upon which are
based the conclusions in the indictment, in para-
graph 1 on page 1, paragraph 2 on page 2, and
paragraph on top of page 4, that defendant is a
citizen of the United States and a person owing
allegiance to the United States.
22. A statement whether or not the defendant at
Tokyo, Japan, was united In marriage to her now
husband, Felipe J. D’Aquino, on April 19, 1945, who
then was and ever since then has been and now is a
national, citizen and domiciliary of Portugal re-
siding in Japan.
It appears from the indictment that the defend-
ant 1s a married person and a resident of Japan
and, therefore, is presumed to be a foreigner who
was brought to San Francisco in the custody of
U.S. agents from which it follows that, by opera-
tion of law, she is a foreign national and, in conse-
quence, defendant requests that the plaintiff be re-
quired to state openly and unequivocally whether
or not defendant is and long has been exclusively a
national, citizen and domiliciary of Portugal, law-
fully residing in Japan, and whether or not she
acquired that political status upon and by virtue of
her marriage to a Portuguese national, citizen and
domiciliary resident in Japan on April 19, 1945.
us. United States of America 111
23. A statement whether or not the United States
heretofore, within the past three years, arrested
defendant thrice or at all in Japan on the same
accusation of treason as charged in the indictment
herein and imprisoned her thrice and thereafter,
acquitted her of the charges or convicted her thereon
or sentenced or imprisoned her thereon and there-
after liberated her from such imprisonment at any
time and, if so, when.
The indictment is silent on these material par-
ticulars although the facts thereof are peculiarly
within the knowledge of the plaintiff. The fact of
a prior acquittal (autrefois acquit) or conviction is
a bar to the present accusation and the indictment
is barred by the constitutional provision against sub-
jecting defendant twice for the same offense and
twice putting her in in jeopardy of life or limb for
the same offense and for inflicting upon her a pro-
hibited repetition of penalty which is cruel and
unusual punishment.
Each of the foregoing 23 specified particulars and
their details, in which the indictment is fundamen-
tally lacking, are essential and necessary to advise
and inform the defendant of the nature of the ac-
eusation against her with sufficient precision to
enable her to learn the nature thereof, to enable
her to prepare her defense thereto, to prevent her
from being taken by surprise at any trial of the
issues herein and to enable her to plead the con-
clusion thereof in bar of another prosecution on the
same charge.
112 Iva Ikuko Toguri D’ Aquino
The defendant states to the Court that this ap-
plication and motion for a bill of particulars is filed
in good faith; that it is not filed for the purpose
of delay, and that it is filed and made so that she
may inform herself of the nature and cause of the
accusation against her and thereby enable her prop-
erly to prepare her defense.
Dated: November 15, 1948.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
State of California,
City and County of San Francisco—ss:
Wayne M. Collins, being first duly sworn, deposes
and says: that he is attorney of record for Iva
Ikuko Toguri D’Aquino, defendant herein; that he
has read the foregoing Motion for Bill of Particu-
lars and knows the contents thereof; that he verily
believes the fact to be that the indictment is vague,
indefinite, uncertain and deficient in the respects,
particulars and details specified in said Motion;
that the defendant cannot safely go to trial on the
indictment herein without the particulars and de-
tails of the matters specified in the said Motion and
that said particulars and details are essential and
necessary to inform defendant of the nature of the
accusation against her with sufficient precision to
enable her to prepare for any trial of the cause that
may be had herein, to prevent her from being taken
by surprise thereat and to permit her to plead the
vs. United States of America 113
conclusion thereof in bar of another prosecution on
the same charge.
/3/ WAYNE M. COLLINS.
Subscribed and sworn to before me this 15th day
of November, 1948.
[Seal] /s/ JANE M. DOUGHERTY,
Notary Public in and for the City and County of
San Francisco, State of California.
Points and Authorities in Support of Motion
for Bill of Particulars
If an indictment fails to allege offenses charged
with sufficient fullness and definiteness as to time,
place, and other circumstances and more precise in-
formation is needed it should be obtained by a bill
of particulars. |
Peck v. U.S. (CCA-7), 65 Fed. 2d. 59, 61,
cert. den. 290 U.S. 701.
See also: Saul Samuel et al. v. U.S. (CCA-9),
169 Fed. 2d. 787, 791, decided Aug. 20, 1948.
Billingsley v. U.S. (CCA-8), 16 Fed. 2d. 754,
759, Where denial was held prejudicial error.
If charges in an indictment are so general that
they do not advise the accused specifically of the
acts of which he is accused the deficiencies must be
supplied by a bill of particulars.
Wilson v. U.S. (CCA-NY), 275 Fed. 307, 310-
311, cert. den. 257 U.S. 649.
114 Iva Ikuko Toguri D’ Aquino
The office of a bill of particulars is to inform the
accused of the nature of the charge with sufficient
precision to enable him to prepare for trial, prevent
surprise and to plead his acquittal or conviction in
bar of another prosecution for the same offense.
U.S. v. Aluminum Co. (DCNY) 41 ES. 347,
348.
9 Hughes Fed. Prac. pg. 515, see. 7046.
10 C. J. 8. pg. 1096.
Respectfully submitted,
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
[Endorsed]: Filed November 15, 1948.
District Court of the United States, Northern Dis-
trict of California, Southern Division
At a Stated Term of the District Court of the
United States for the Northern District of Cali-
fornia, Southern Division, held at the Court Room
thereof, in the City and County of San Francisco,
on Monday, the 3rd day of January, in the year of
our Lord one thousand nine hundred and forty-nine.
Present: The Honorable Michael J. Roche,
District Judge.
us. United States of America 115
[Title of Cause. ]
ORDER
(Minute order that Motion for Bill of Par-
ticulars, Motion to Dismiss Indictment be
denied, and that Motion for Discovery and
Inspection be granted as to request number 7
but denied as to remaining requests, and that
Motion to Strike Indictment be denied.) (Plea
of *‘ Not Guilty.’’)
This cause came on this day for entry of plea,
also for hearing on following motions: motion to
dismiss Indictment, motion to strike, motion for
discovery and inspection, motion for bill of par-
ticulars. ‘The defendant, Iva Ikuko Toguri
D’Aquino, was present in the custody of the U. 8.
Marshal and with her attorney, Wayne Collins, Esq.
Tom De Wolfe, Esq., Special Assistant to the At-
torney General, was present on behalf of the United
States.
It is Ordered that the Motion for Bill of Par-
ticulars made pursuant to Rule 7(f) of the Rules
of Criminal Procedure be and the same is hereby
denied. That the Motion to dismiss the Indictment
for failure to allege an offense be and the same is
hereby denied. That the motion to dismiss the In-
dictment made pursuant to Rule 12(b) of the Rules
of Criminal Procedure be and the same is hereby
denied. That the Motion for discovery and inspec-
tion made pursuant to Rule 16 of the Rules of
Criminal Procedure be granted as to request number
116 Iva Ikuko Toguri D’ Aquino
Seven (7), and as to the remaining requests be and
the same is hereby denied. That the Motion to strike
the Indictment be and the same is hereby denied.
The defendant was called to plead and thereupon
said defendant entered a plea of ‘‘Not Guilty”’ to
the Indictment filed herein against her, which said
plea was ordered entered.
On motion of Mr. Collins and with consent of
Mr. De Wolfe, it is Ordered that this case be set for
trial on May 16, 1949. (Jury)
[Title of District Court and Cause. |
NOTICE
To Frank J. Hennessy, United States Attorney,
and to Tom DeWolfe, Special Assistant to the
Attorney General, Attorneys for the Plaintiff
You and each of you will please take notice that
on Monday, the 7th day of March, 1949, at the
Courtroom of the above-entitled Court, 3rd Floor,
Post Office Building, 7th and Mission Streets, San
Francisco, California, at the hour of 2 o’clock p.m.
of said day, or so soon thereafter as counsel can
be heard, the defendant will bring on for hearing
the within motions.
Dated: March 1, 1949.
/3s/ WAYNE M. COLLINS,
Attorney for Defendant.
vs. United States of America 117
[Title of District Court and Cause.]
J
MOTION FOR ORDER AUTHORIZING AND
DIRECTING ISSUANCE OF SUBPOENAS
REQUIRING ATTENDANCE OF WIT-
NESSES IN A FOREIGN COUNTRY AT
THE TRIAL HEREIN AT THE EXPENSE
OF THE GOVERNMENT AND FOR SERV-
ICH THEREOF
The defendant, Iva Ikuko Toguri d’Aquino, moves
the Court for its order authorizing and directing the
issuance of subpoenas requiring the. attendance of
the hereinafter named witnesses, residing abroad at
the places hereinafter set forth, at the trial herein
at the expense of the plaintiff, the U. S. Govern-
ment, and for the service of said process of court.
The names, addresses and nationalities and citi-
zenship of the witnesses whose names are known to
defendant and the necessary and material testimony
the defendant expects them to give at the trial
herein are as set forth in the affidavit of the defend-
ant filed in support of this motion which hereby is
incorporated herein by reference. Each of the said
witnesses named in said affidavit, together with
others whose names are not presently known to de-
fendant, is a necessary and material witness for the
defendant on the trial of this cause and a witness
whose testimony is necessary and material to the
defendant in her defense to said action, the ma-
teriality of their testimony being set forth in the
118 Iva Ikuko Toguri D’ Aquino
defendant’s affidavit filed in support of this motion.
The defendant cannot safely proceed to a trial of ©
said action without the production of the person of
each of said witnesses in court at the trial herein
to testify in person so that their individual testi-
mony, attitudes and demeanors can be observed, con-
sidered and weighed by the Court and the jury. The
failure of the Court to order the production of said
witnesses at the trial herein and the failure of the
Government to produce or allow them to be produced
at the expense of the Government will result in a
failure of justice and deprive the defendant of her
substantial constitutional and statutory rights to a
fair and impartial trial and to obtain witnesses in
her favor, in violation of the provisions of the Sixth
Amendment and the due process guaranty of the
Fifth Amendment of the Constitution.
il.
MOTION TO DISMISS THE INDICTMENT
In the event the defendant’s foregoing Motion
No. I is denied the defendant moves the Court to
dismiss the indictment and discharge the defendant
from custody on the grounds that the denial thereof
deprived the Court of jurisdiction to proceed in the
cause and that it deprived the defendant of her
right to a fair and impartial trial by jury and of
her right to obtain witnesses in her own defense, in
violation of the provisions of the Sixth Amendment
and of the due process guaranty of the Fifth
Amendment of the Constitution.
vs. United States of America 119
TMM.
MOTION THAT COURT CONDUCT PART OF
TRIAL BY JURY IN TOKYO, JAPAN,
HONG KONG, CHINA, and SYDNEY, AUS-
TRALIA
In the event the foregoing Motion No. II is de-
nied the defendant moves the Court to order part
of the trial of the defendant by jury to be held and
conducted in Tokyo, Japan, Hong Kong, China, and
Sydney, Australia, to suit the convenience of the
citizen and alien witnesses residing in said foreign
countries whose names, residences and nationalities
are set forth in defendant’s affidavit filed in support
of this motion and whose testimony is necessary and
material to her defense at her trial herein, as also
set forth in said affidavit, and for the purpose of
obtaining said testimony, at the expense of the
United States government and that the travel ex-
penses and subsistence expenses of defendant’s at-
torney for representing her thereat be defrayed by
the United States government for the reason that
she cannot bear said expenses or any part thereof,
as appears by the affidavit of the defendant filed in
support of this motion.
ie
MOTION TO DISMISS THE INDICTMENT
In the event the defendant’s foregoing Motion No.
III is denied the defendant moves the Court to dis-
120 Iva Ikuko Togurt D’ Aquino
miss the indictment upon the grounds that the Court
thereby lost jurisdiction to proceed in the cause, and
that such effectively has deprived the accused de-
fendant of her right to a fair, speedy and impar-
tial public trial, by an impartial jury in the District
and deprived her of the right to have compulsory
process for obtaining witnesses in her favor, in vio-
lation of the provisions of the Sixth Amendment
and the due process of law guaranteed to her by the
Fifth Amendment of the Constitution.
Vv.
MOTION TO POSTPONE TRIAL OF THE
CAUSE AND EITHER TO DISCHARGE
DEFENDANT FROM CUSTODY OR TO
ADMIT HER TO BAIL PENDING SUCH
TIME AS THE GOVERNMENT PROVIDES
FOR THE PRODUCTION OF DEFEND-
ANT’S WITNESSES FROM ABROAD TO
TESTIFY IN PERSON AT THE TRIAL
HEREIN
In the event the defendant’s foregoing Motion No.
IV is denied the defendant moves the Court to post-
pone the trial of the cause and either to discharge
the defendant from custody or to admit her to bail
pending such time as the government provides for
the production of defendant’s witnesses from
abroad at the expense of the Government upon the
grounds that the Court has no Jurisdiction to pro-
vs. Umted States of America 121
ceed further with the trial of said cause and that to
compel the defendant to stand trial under such cir-
cumstances deprives her of a fair, speedy and im-
partial trial and to have compulsory process for
obtaining witnesses in her favor, in violation of the
provisions of the Sixth Amendment and the due
process of law guaranty of the Fifth Amendment
of the Constitution.
ie be
MOTION TO DISMISS THE INDICTMENT
In the event the defendant’s foregoing Motion No.
V is denied the defendant moves the Court to dis-
miss the indictment and discharge the defendant
from custody on the grounds the denial thereof de-
prived the Court of jurisdiction to proceed in the
cause and that it deprived the defendant of her
right to a fair and impartial trial by jury and de-
prived her of the right to obtain witnesses in her
own defense, in violation of the provisions of the
Sixth Amendment and of the due process guaranty
of the Fifth Amendment of the Constitution.
122 Iva Ikuko Toguri D’ Aquino
VI.
MOTION FOR ORDER AUTHORIZING AND
DIRECTING ISSUANCE OF SUBPOENAS
REQUIRING ATTENDANCE OF WIT-
NESSES ABROAD AT THE TAKING OF
THEIR DEPOSITIONS AND PROVIDING
FOR THE TAKING OF DEPOSITIONS OF
FOREIGNERS AND CITIZENS ABROAD,
AT THE EXPENSE OF THE GOVERN-
MENT, INCLUDING THE EXPENSES OF
TRAVEL AND SUBSISTENCE OF DE-
FENDANT’S ATTORNEY AND INVESTI-
GATOR-INTERPRETER FOR INTER-
VIEWING WITNESSES AND FOR
ATTENDANCE AT THE EXAMINATIONS
In the event the defendant’s foregoing Motion No.
VI is denied, the defendant moves the Court, under
Rule 17 of the Rules of Criminal Procedure, for its
order authorizing and directing the issuance and
service of subpoenas for the taking of the oral depo-
sitions of the hereinafter named persons who reside
in the foreign countries shown after their names and
who, according to the best knowledge, information
and belief are citizens of the United States, Por-
tugal, France, Australia or Great Britain, or Japan,
as shown in the affidavit of the defendant filed in
support of this motion, to be taken in Tokyo, Japan,
and elsewhere in Japan, in Hong Kong, China, and
Sydney, Australia, respectively, at the expense of
the United States government on the grounds and
vs. Umted States of America 123
for the reason that the defendant cannot bear the
expense thereof ;
The defendant also moves the Court for the ex-
penses of travel from San Francisco, California, to
Tokyo, Japan, Hong Kong, China, and Sydney, Aus-
tralia, and return therefrom, and subsistence of her
attorney for attendance at the examinations of said
witnesses on the taking of said depositions at the
expense of the United States government on the
grounds and for the reason that the defendant can-
not bear the expense thereof ;
The names of the witnesses whose depositions the
defendant desires to be taken, their nationalities
insofar as known to defendant and her counsel, their
places of residence and the place where their depo-
sitions can be taken are as follows:
Iva Ikuko Toguri D’ Aquino
124
ueder ‘ofyoy,
uvdep ‘oAYOT,
uedep ‘OAYOT,
uvdep ‘o£,
uvdep ‘oA£YOT,
uede ep ‘oA¥OT,
uvde rp ‘oAxOY,
uvdep ‘OAXOT,
uvde ep ‘oAYOT,
uevdep ‘oAYOT,
uedep ‘oAYOT,
uede p ‘o£YOT,
uede ep ‘oAYOT,
uede ‘oA¥OT,
VUIYYD ‘SUOY SUOFT VUIYO ‘suoy suOTT
uede pr ‘o£YOT,
uedep ‘oAYOT,
uevdep ‘oAMOT,
uede pr ‘o£¥OT,
uevdep ‘oA¥O,
uede pr ‘OAYOT,
uvde pe ‘oA,
uedep ‘o£¥OT,
uede ‘OAXOY,
uvdep ‘osMO,
uorztsodeq fo v0e[ J
uedep ‘Tsusyy
uedep ‘Isnsyy
uede rp ‘o£¥OT,
uvdep ‘oAYOT,
uede rp ‘oAYOT,
uedep ‘oA HOT,
uvdep ‘oAYO I,
uede ‘oAYOT,
uedep ‘oAYOT,
uede ‘oA¥OT,
sdUSpPISoy
COU ee VpeyO onsyey “AT °
SOMede( tse BUIVATIO]Y TYSBSTP] “AT
SSOUNBULE pres emo renesreecnse oYsteg AUINOT SSIPT °
STU LO aaeleaaaa ITYSO X Sopzeyy °
ScoURCIn(: = 00 VSCVUNS}LTL OYOUO X
"SIJ 10 SSTPY *
SIS GOT ene Opry tweUy ‘SAT’
SsolioWglOg, ec oumnby, p ‘¢ edtya,q °
asonenylog-—---"""" oumnby, p sneppryy, “Ay *
Ssaiom ios “ros oulnby, p elieyy “Rig *
esonsnylog oumndY, Pp OUIWIOLY SOF “1G °
SSOP CP (pee a BAIUINS] LTT VANZLY “ATT *
MOZIL Ge py errr rcmceccneees sANOUT UY “ATT °
ScoUCOR VeMeyeARTT TUINS YN °
SSOUBO(p) TYeSeSO], VS1004) “ATT *
SUC BOUG Oa lias oueyey, “ATT *
yon YUIYIS SOPPIIN “FTS °
esonsnqylog---" OJULY SopouRIqy “VY “f “UOF *
USM (h = 0a OSHILL SIV] “UOPy *
AYT[VUOTYLN ouUIeN
maN ¢O tH 1S © ft CO GS
125
vs. United States of America
uedep ‘oA yO,
uvdeep ‘oAYO,
uedep ‘oAYOT,
uedvp ‘oAyO,
uedep ‘OAYOT,
uvdep ‘oAYOY,
uedevp ‘oxyOL,
uvdey ‘oAyOY,
uedep ‘ofyOY,
uedep ‘oA yO],
uedee ‘oAYOY,
uedvep ‘oAYOT,
uedep ‘oAyOy,
uede ep “OAYOT,
uedep ‘oA yoy,
uoljisodaq Jo vot g
uvdve ‘oAyOy,
uvdep ‘oAYOT,
uedep ‘oAYOT,
uvdep ‘oA¥OT,
uvdvp ‘oAyOT,
uvdeep ‘odo T,
uevdep ‘oxyoT,
uedvp ‘osYOT,
uedep ‘oAYOL,
uvdep ‘euleyoyo x
uvdvp ‘oso,
uvdep ‘OAYOL
uvdep ‘oA yO,
uede ‘odo,
uvdep ‘oxyOT,
dUIPISEy
ssouedrip
ystuag 7
esouvdup
esouvdup
asouvdB (err
asouudelp------
ssoumdleye----------
asouvde pe
Youed qo
Wznigee ho
Meme Gane
WEZTHO "SN
wz sac
Jeouvdeg-------*-
osouede (er
AYTBVUOIEN
aden tase uvdep ‘oxyoy, ‘ny
BABSEYS ddI[Og JO Jl, °
“aa ia WHYS] ALEHY SSITY ”
eens WYS] OY] “A]Y
ati Ae Serine ea oud) “S| AA”
5 a IYO Woy “AIT”
anseenencenneeeneece ees vANAN YY 98U
TIO OFEATTL “SAT”
seeceeee UOSTL | BULLYOYO | JO
IGIVYD Ul AIDIJOQ AULLY “S'Q *
UOSLIG OUIRSNG JO doIeYyO
Ul LIYJOQ AULTY “S7-) °
secre AQYSHOTIEAL SopTPYD
uay “fey”
“" ANYPIyovypy Svpouocy “uar) *
a: OJOUIVYVN 99.109!) “ATT”
a ae LIO}JVF]T OLN] “APT *
ULB
Iva Ikuko Toguri D’ Aquino
126
uedep ‘oA¥OT, uede
uedep ‘oA¥OT, ueder
uedep ‘oA¥OT, uedep ‘oA¥OT,
CSeMleuhege: errmmenrnnnnnns TYCLEQeYAL], “IT ‘SF
Seommediaipy “7 rstrresernocssaaasnecenerseces TUWINJTPT “AP ‘CF
OsOuUud By uevderp ‘oxyo, ‘Os 4OT,
OIpery FO Sp10d01 WOT}yesued
-W0d PUB JUBULAO[CUIa JO
ISIVYD UL LIDYJO 9YVUIPAO
-(US 10 LOSVUR] [V1IUI) “TF
eulyy ‘suoy suo eUIYO ‘cUOYy suUOTT USER, ers pueyjoH uyor ‘OF
elearjsny ‘AoupAG ss eipeaysny ‘AoupAS USO SCS (iit aaa SUISNOYD “CF SITAVYD ‘6E
uederp ‘oA¥OY, uvder ‘oA¥OT, Ssoumeee (eo Tyezoy, yeureueTxy “ATT “ge
uedep ‘oA¥O I, Meder OIO|, USZONS QC uedep ‘oA,
uedep ‘oA¥OT, uedep ‘OA YO,
ueder ‘oA¥O, uedeep ‘tons y
uedep ‘oA, uedep ‘oAYOT,
uor}ISOdadg JO 90e[g VUIPISOIY
10 ssourde (? ‘SpLoool Te} 1aduls y
JO as1VYO UL 199YJO “LE
esouvdy rn uederp ‘oAYOT, ‘oot[og
uvppodoryoyy FO FOIH “9E
a Oil. 01 | aa uedep ‘ins}y
‘OOT]Og JO FOI “GE
QSOUBAG (errr uevdep ‘oAYOT, ‘Pre A,
BQIYS “oro JO Jory “FE
AVPEuoTyeN oUIeN
us. United States of America 127
This motion is made upon the ground that each
of the named witnesses is a necessary and material
witness for the defendant on the trial of said action
and a witness whose testimony is necessary and
material to the defendant in the defense of said
action.
The facts to which each of said witnesses 1s ex-
pected to testify and the materiality of that testi-
mony is set forth in the affidavit of the defendant
filed in support of this motion and is incorporated
herein by reference for said purposes.
The defendant cannot safely proceed to trial of
sald action without the testimony of said witnesses.
The taking of said depositions is the sole remain-
ing avenue available to the defendant to obtain the
testimony of said witnesses which is material and
necessary to her defense at the trial herein and
which is not available to defendant from any other
source or sources save and except said witnesses
who are in foreign countries, a majority of whom
are in Japan from whence defendant was brought
by agents of the United States, away from her home,
husband, friends and witnesses. :
Therefore, defendant moves that a commission
| issue to the United States Consul at Yokohama,
Japan, or Kobe, Japan, for the purpose of taking
the depositions of the aforesaid witnesses in Japan,
at Tokyo, Yokohama or Kobe, Japan, as shall to
him be convenient, commencing on or about April
1, 1949, at an hour convenient to him, and to con-
tinue thereafter, until the depositions of each said
witness shall have been taken, or that, in lieu of
128 Iva Ikuko Togurt D’ Aquino
said method of taking said depositions, the deposi-
tions of such witnesses be taken by stipulation be-
tween the parties hereto in Japan during April,
1949, at such places and in such manner, before
any person the respective attorneys for the parties
hereto there shall agree upon.
Defendant, by her attorney, represents to the
Court that the attorneys for the plaintiff have in-
formed her attorney herein that they are willing
to consent that the depositions of the defendant’s
witnesses, whether said witnesses be citizens or
aliens abroad, may be taken in Japan and also in
Hong Kong and that, for said purpose will there
provide for an attorney for the U. 8S. Government
to be present at the taking thereof and to represent
the plaintiff thereon and to do what they can to
expedite the issuance of the necessary passports
and also military permits from SCAP, Tokyo, for
defendant’s attorney and representative to enter
Japan and there locate and interview defendant’s
witnesses, whosoever they may be, and to take their
depositions there by stipulation without requiring
court orders first authorizing the taking of the
depositions of each of the aforesaid witnesses and
of each other person who may be found in Japan
to be a witness for the defendant whose deposition
the defendant or her attorney there may desire to
take.
The failure or refusal of the Court to order and
authorize the depositions of said witnesses to be
taken abroad and the failure of the U. 8. Govern- —
ment to enable such depositions to be taken abroad :
|
|
vs. Umted States of America 129
at the expense of the Government will result in a
failure of justice and deprive the defendant of her
substantial constitutional and statutory rights to a
fair and impartial trial and to obtain witnesses in
her favor, in violation of the provisions of the Sixth
Amendment and the due process of law guaranty
of the Fifth Amendment of the Constitution.
VIII.
MOTION TO DISMISS INDICTMENT
In the event the defendant’s foregoing Motion
No. VII is denied, or the military permits for de-
fendant’s attorney therein mentioned is denied by
SCAP, Tokyo, the defendant moves the Court to
dismiss the indictment and discharge the defendant
from custody on the grounds the denial thereof
deprived the Court of jurisdiction to proceed in
the cause and that it deprived the defendant of her
right to a fair and impartial trial by jury and de-
prived her of the right to obtain witnesses in her
own defense, in violation of the provisions of the
sixth Amendment and of the due process of law
guaranty of the Fifth Amendment of the Consti-
tution.
tach of the foregoing motions will be made and
based upon the notice of these motions, said motions,
affidavit in support of said motions, and upon all
the records, pleadings, files, court orders and docu-
ments on file herein.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
130 Iva Ikuko Togurt D’ Aquino
Points and Authorities in Support of Motions
Rules 15, 17 and 26, Rules of Criminal Procedure.
Compare, Rules 29 and 30, R.C.P.
Fifth Amendment, U. 8S. Constitution.
Sixth Amendment, U. 8. Constitution.
Respectfully submitted,
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
[Title of District Court and Cause. ]
AFFIDAVIT IN SUPPORT OF MOTIONS
Northern District of California,
State of California,
City and County of San Francisco—ss.
Iva Ikuko Toguri d’Aquino, being first duly
sworn, deposes and says: that she is the defendant
in the above-entitled action and is detained under
process of this Court, without bail, in San Fran-
cisco County Jail No. 3, Dunbar and Washington
Streets, San Francisco, California; that she is an
adult person over the age of twenty-one (21) years;
that ever since on or about July 25, 1941, she has
continuously resided in Tokyo, Japan, where, on
April 19, 1945, she was lawfully united in marriage
to one, Felipe J. d’Aquino, who then and ever since
his birth has been and still is a national and citizen
of Portugal residing in Tokyo, Japan; that she
thereby and thereon, pursuant to the law of Portu-
vs. United States of America 131
gal, as also the law of Japan, as also by the law
of all other civilized nations and by international
law, became and ever since then continuously has
been and now is a national and citizen of Portugal
and in 1945 was formally naturalized as a Portu-
guese national by said marriage and by formal
registration of said marriage as such a citizen of
Portugal at the office of the Consul of Portugal at
Tokyo, Japan; that ever since her said marriage
she has resided at No. 396 Ikejiri Machi, Setagaya-
Ku, Tokyo, Japan, with her said husband.
On August 26, 1948, defendant was arrested by
agents of the United States, acting under orders of
the Attorney General of the United States, and
thereupon imprisoned in the Sugamo Prison, Tokyo,
Japan, and thereafter was forcibly taken aboard
the S. 8S. General F. R. Hodges, a U. S. transport
vessel, on which she was brought to San Francisco,
California, on September 25, 1948, and while said
vessel was in progress of docking at said port she
was seized by agents of the U. 8. Federal Bureau
of Investigation upon a purported complaint filed
in this Court on September 25, 1948, was brought
before the U. S. Commissioner in this District and
thereafter was indicted in this cause which is now
pending in this court.
The defendant is an indigent; aside from used
clothing and a few personal effects, the reasonable
value of which does not exceed Twenty-five ($25.00)
_ Dollars, she possesses the following assets only, viz.,
the equivalent of the sum of approximately One
132 Iva Ikuko Toguri D’ Aquino
Hundred ($100.00) Dollars on deposit in the Postal
Savings Bank in Tokyo, jointly with her husband
in Tokyo, Japan, household furniture, dishes, trunk,
sewing machine and utensils of the reasonable value
of One Hundred ($100.00) Dollars, and a remote
claim or right, subservient to the right of the Attor-
ney General as the Alien Property Custodian, in
and to certain real property situated in Los Angeles
County, California, described as follows, to-wit:
Lots 42 and 57 of the South Gate Tract in the
Rancho Tajauta, as per map recorded in Book 18,
Pages 14 and 15 of Maps in the office of the County
Recorder of said County, and portion of the 538.28
acre track of land allotted to Jose Maria Abila in
the partition of Rancho Tajauta, Case number 1200
of the 17th Judicial District Court in the County
of Los Angeles,
which said property she is informed and _ believes
has an approximate market value of Three Thou-
sand Five Hundred ($3,500.00) Dollars, the interest
of the defendant therein, however, being at most a
disputable claim and hence of substantially no value
whatever to her.
By reason of her said poverty and indigency the
defendant does not have sufficient means and is
actually unable to bear the expense of producing
her witnesses, hereinafter named, of any of them,
to testify in person in her defense at the trial herein,
or to bear the expense of their travel, subsistence
and witness fees for attending or to have served the
subpoenas for the taking of their depositions or
any of them.
vs. United States of America 133
By reason of her said poverty and indigency the
defendant does not have sufficient means and is
actually unable to bear the expense of the taking
of oral depositions of her said witnesses, or of any
of them, and is unable to bear either the expenses
of travel or subsistence of her attorney for attend-
ance at the said examinations and the taking of
said depositions abroad.
That each of the witnesses, hereinafter named,
and named in her motion for the production of
defendant’s witnesses at the trial herein and in the
motion for the taking of depositions is a necessary
and material witness for the defendant on the trial
of said action and the testimony of each is neces-
sary and material to the defendant in her defense
of said indictment.
That the defendant cannot safely proceed to a
trial of said action without the testimony of said
witnesses.
The witnesses whose testimony is necessary and
material to be given at the trial herein or to be
given by the depositions to be introduced in evi-
dence at the trial herein, their places of residence,
their nationalities and citizenships which are un-
known to defendant but which she believes to be as _ -
hereinafter set forth, and the material and neces-
sary testimony they are expected to give, in sub-
stance and effect, are as follows:
1. The Hon. Lars Tillitse, a citizen of Denmark,
Danish Representative to SCAP, Tokyo, Japan, to
testify that defendant was employed from on or
134 Iva Ikuko Togurt D’ Aquino
about January 1, 1944, to sometime in May, 1945,
by the Royal Danish Legation in Tokyo, Japan,
while he was Danish Minister to Japan; to the facets
and circumstances how her said employment arose;
the hours of her said employment, the days she so
worked and the nature and duties of her employ-
ment, the days she was absent from her work; the
compensation paid to her for said services; the
conditions under which she lived in Japan, to the
fact that she was subjected to constant police sur-
veillance by the Kempeitai, ward and metropolitan
police departments in Tokyo; her physical and
mental condition, as observed by him during said
period; the facts of her marriage to a Portuguese
national and citizen on April 19, 1945, her registra-
tion and naturalization as a Portuguese citizen at
the Portuguese Consulate in Tokyo in 1945; state-
ments made by her to him and conversations de-
fendant had with ‘him during said period relating
to her citizenship, activities and loyalty to and sym-
pathy with the United States and its and the Allied
cause; and that her reputation for truth and verac-
ity in the community in Japan where she resides
is excellent. |
2. The Hon. J. A. Abranches Pinto, a Portu-
euese citizen, Consul of Portugal, Tokyo, Japan,
to testify he has been acquainted with the defendant
from 1943 to date; that he attended the wedding
of defendant to Felipe J. d’Aquino, a Portuguese
citizen, at Sophia University Chapel, Tokyo, Japan,
vs. Umted States of America 135
on April 19, 1945; that said marriage was regis-
tered at the Portuguese Consulate in Tokyo in
1945; that by said marriage and the defendant’s
formal registration thereof in 1945 at said consulate
defendant became a naturalized citizen of Portugal
and ever since then has been a national and citizen
of Portugal; to testify to her registrations there
as such in 1946, 1947 and 1948; to identify and
testify to the formal registration certificates issued
to her during each of said years; to testify, as an
expert witness, duly qualified so to do, that by the
law of Portugal said marriage and said registration
in 1945 by the defendant constituted her formal
naturalization as a Portuguese national and citi-
zen; that defendant was kept under constant sur-
veillance by the Kempeitai, ward and metropolitan
police in Tokyo and was compelled to report to said
agencies repeatedly from 1948 to the conclusion of
hostilities by Japan’s surrender in 1945 to the
Allied Powers; and that defendant’s reputation for
truth and veracity in the community in Japan
where she resides is excellent.
3. $. Lt. Nicklos Schenk, a citizen of Holland,
Custodian Officer, Netherlands Legation, General
liaison, G. H. Q., Tokyo, Japan, to testify that
from late 1948 to August, 1945, he was acquainted
with the defendant while he was held as a prisoner
of war by the Japanese in Tokyo, Japan; that he
was frequently, during said period of time, at the
Radio Tokyo broadcasting offices; that he then was
and is acquainted with the females who there broad-
136 Iva Ikuko Togurt D’ Aquino
cast on the Zero Hour program during said period
of time; to testify to their names and addresses and
to testify to the nature and content of their broad-
easts and to identify them and to distinguish them
from the defendant; that the recorded music played
on the prisoner of war Zero Hour was lively in
character and was calculated to and did bolster the
morale of U. S. and Allied troops; that the defend-
ant never committed any of the unlawful acts men-
tioned in the indictment herein; that the defendant
neither by word nor deed did anything to injure,
harm or betray the cause of the United States or
its Allies; that a large number of Allied prisoners
of war there were held by the Japanese under
duress and were coerced into radio broadcasting
for the Japanese; that, at great personal risk the
defendant, during said period of time, secretly and
repeatedly conveyed to U. 8. and Allied prisoners
of war, there held by the Japanese, news of the
progress of U.S. and Allied armed forces and news
of U. 8. and Allied military and naval successes
for the purpose of bolstering up their spirits, cour-
age and hopes and secretly, at like great personal
risk, supplied to them food, cigarettes, blankets and
medicine; and that she gave comfort to said pris-
oners of war’ and aided them in their efforts to
defeat the purposes of their Japanese oppressors
and to testify to the nature, manner and details of
that aid and comfort; and that during the whole
of said period of time the defendant had it within
her power to report the United States and Allied
vs. United States of America 137
prisoners of war to the Kempeitai for their broad-
easting activities in aiding the U. S. and Allied
cause and thereby betray them to the enemy but
knowingly failed and refused so to do and thereby
aided the U. S. and Allied cause by keeping said
matters and things secret from the Japanese.
4. Mr. Takano, Tokyo, Japan, a Japanese citi-
zen, to testify he was manager of the business office
of Radio Tokyo from about August, 19438, to about
May, 1945; that he has been acquainted with the
defendant since sometime in August, 1948; that he,
in late 1943, upon the suggestions and prompting
of other persons whose names are not at this time
known to defendant, and upon what affiant is in-
formed and believes and therefore alleges upon
information and belief to have been a command or
order of Japanese Army officers, ordered and com-
pelled defendant to accept employment designated
by him at Radio Tokyo and that defendant was
coerced into so doing under duress and over her
repeated protests against complying therewith; that
the Zero Hour radio program from its inception to
its conclusion in August, 1945, was designed and
used, by the U. S. and Allied prisoners of war who
conducted that program, to aid and comfort the
U.S. by giving them true information as to the
whereabouts and condition of prisoners of war
taken by the Japanese, and by giving such infor-
mation to injure Japan; that the defendant never
wrote or composed any radio script whatever; that
the defendant never made any news or propaganda
138 Iva Ikuko Toguri D’ Aquino
broadcast by radio or otherwise at any time; that
defendant was kept under continuous surveillance
by the Kempeitai and was in continuous fear of the
Kempeitai and had good reason so to be; that de-
fendant never committed any of the overt or other
unlawful acts alleged in the indictment; and never
wrote, said or broadcast any statement or com-
mitted any act whatever against the U. S. and its
Allies or their cause or any statement in favor of
the Japanese; to testify to the dates and hours of
defendant’s employment during said period and the
days she was absent therefrom.
d. Mr. George Togasaki, Editor, Nippon Times,
Tokyo, Japan, a Japanese citizen, to testify that
ever since August, 1944, he has been acquainted
with the defendant; that between August, 1944, to
about March, 1945, he was manager of the Zero
Hour radio program at Radio Tokyo; to state the
names and addresses of each female who was an
announcer or radio broadeaster on said program
during said period of time and to testify to the
nature, contents and character of their respective
broadeasts; to testify to the names of the person
or persons who prepared the script for said broad-
casting and to the nature, contents and character
thereof; the rates of compensation, if any, paid for
such services; to testify to the time defendant there
was engaged, the type of work or services she per-
formed, the hours, days and months of her employ-
ment, the days she was absent therefrom; rate of
compensation ; to distinguish the work of the female
vs. Umted States of America 139
announcers on said program from the work per-
formed by defendant; to testify that defendant
never said, announced or broadcast by radio any
propaganda whatever for the Japanese or anything
against the U. 8. or its Allies or against the U. 8.
and Allied cause and that she never committed any
of the overt or other unlawful acts alleged in the
indictment herein; that during her employment de-
fendant was held under constant surveillance by
the Japanese secret police and that the work she
performed was not voluntary but was coerced.
6. Ruth Sumi Hayakawa, Tokyo, Japan, a Japa-
nese citizen, to testify that she, Ruth Sumi Haya-
kawa, was employed: for several years prior to 1943
continuously until about August, 1945, as a staff
announcer for Radio Tokyo; that she became
acquainted with the defendant about August, 1943;
that in excess of twenty U.S. and Allied prisoners
of war held by the Japanese were forced under
duress to become radio announcers for the Japa-
nese at Radio Tokyo; that certain of those prisoners
were forced, under duress and in order to save their
lives, to become broadcasters for the Japanese; that
there were a number of female broadcasters on the
Zero Hour program; to testify to the names of the
persons who prepared the radio seript for broad-
casting on the Zero Hour program and to the names
of the males and females who broadcast thereon
and the nature and contents of those broadeasts,
the frequency of those broadeasts and to distinguish
their activities and duties of employment from those
140 Iva Ikuko Toguri D’ Aquino
of the defendant; to testify that the defendant
never at any time whatever prepared or wrote any
radio script and was not qualified so to do; to
testify who originated that program, the purpose
and objective thereof and that the prisoners of war
who were compelled to broadcast designed and con-
ducted the Zero Hour prisoner of war program to
serve the U. S. and Allied military cause and to
defeat the purposes of the Japanese by broadcast-
ing U. S. and Allied prisoner of war messages to
U. §. and Allied troops giving names, whereabouts
and conditions of U. 8S. and Allied nationals taken
prisoner by the Japanese; that the defendant was
repeatedly registered with the Japanese police de-
partments and was under their constant surveil-
lance and by the Kempeitai; that the defendant
never said or did anything or broadcast anything
whatever favorable to the Japanese and never said
or did anything or broadcast anything against the
U.S. or its Allies or against the U. S. and Allied
cause; and that defendant never committed any of
the unlawful acts alleged in the indictment.
7. Mr. Ken Inouye, Care: GHQ., P. I. Office,
Tokyo, Japan, a U.S. citizen, to testify that he has
been personally acquainted with the defendant since
about August, 1948; that from August, 1948, to
August, 1945, he frequently visited Radio Tokyo,
knew a majority of the radio announcers there
employed; that he very frequently during said
period visited said office and listened to the Zero
Hour radio programs; to testify to the nature and
vs. United States of America — 141
character of that program and to identify the an-
nouncers thereon and the nature and contents of
the broadeasts of each male and female announcer
he heard thereon and the nature and types of music
recordings; and to testify to the nature of the occu-
pation of defendant at Radio Tokyo, the days she
there worked during said period and the days she
was absent therefrom and the cause of such ab-
sences.
8. Mr. Kazuya Matsumiya, Tokyo, Japan, Seta-
gaya-ku, a Japanese citizen, to testify that he was
the principal of the ‘‘School of Japanese Language
and Culture’? in Shiba Ward Tokyo; that defend-
ant enrolled in said school in September, 1941, and
attended said school continuously from said date
until about December 31, 1942, for the purpose of
learning the Japanese language; that when she first
enrolled she was ignorant of written Japanese and
could not read the written language and had a scant
ability to speak colloquial Japanese; and that she
made a little progress in reading and writing that
language; and to testify to the hours during the
day and the days she attended said school.
9. Sr. Jose Filomino d’Aquino, of Atsugi, Ka-
nagawa Prefecture, Japan, a Portuguese citizen,
to testify that he has known the defendant since
June, 1943, and that up to August 15, 1945, saw
and conversed with her on an average once per
month; that she repeatedly during said time ex-
pressed to him her loyalty, sympathy and devotion
to the U. 8. and Allied cause and her opposition to
142 Iva Ikuko Toguri D’ Aquino
Japan; that he knew of his own knowledge that
defendant was kept in fear of the Kempeitai and
that she was under constant surveillance by that
organization and by the Tokyo metropolitan police
departments; to testify to the fact that the defend-
ant during said period suffered from malnutrition
and beri beri; and to testify that he became the
father-in-law of defendant on April 19, 1945, when
his son married the defendant in Tokyo.
10. Sra. Maria d’Aquino, of Atsugi, Kanagawa
Prefecture, Japan, a Portuguese citizen, to testify
to the same facts as her husband, above stated, ex-
cept the last clause thereof; and that she became
the mother-in-law of defendant on April 19, 1945,
when her son married the defendant in Tokyo.
11. Mr. Thaddeus d’Aquino, Care Portuguese
Consulate, Hong Kong (and Shanghai), China, a
Portuguese citizen, to testify that he has been
acquainted with the defendant since about July,
1942; that during various conversations had with
the defendant in Tokyo, Japan, from that time
until the spring of 1944, the defendant spoke to
him and told him of her loyalty to the U. S. and
sympathy with the cause of the U.S. and its Allies
and of her constant opposition to Japan on an
average of two to three times per week; that by
reason of the marriage of his brother Felipe J.
d’Aquino to defendant on April 19, 1945, he became
the brother-in-law of defendant.
vs. United States of America 143
12. Felipe J. d’Aquino, 396 Ikejiri Machi, Seta-
gaya-Ku, Tokyo, Japan, a Portuguese citizen, to
testify he married defendant on April 19, 1945; that
he has known her since 1942; that he married her
in Tokyo on April 19, 1945; that by virtue of said
marriage and her registration of said marriage as
a Portuguese citizen at the Portuguese Consulate
in Tokyo, Japan, in 1945, she formally was natural-
ized as a Portuguese citizen and national; that from
Nov., 1948, to Aug. 15, 1945, he saw the defendant
almost daily; that defendant repeatedly told him
she was loyal and devoted to the U. S. and Allied
eause; that she many times during said period
secretly and at great personal risk delivered food,
medicine and blankets to U. S. and Allied prisoners
of war held by the Japanese; that he saw her at
Radio Tokyo many times during said period and
knows the nature of her employment; that he knows
of his own knowledge and observation that the de-
fendant never wrote any radio scripts and that she
never committed any of the unlawful acts charged
in the indictment.
13. Mrs. Unami Kido, 396 Ikejiri Machi, Seta-
gaya-Ku, Tokyo, Japan, a Japanese citizen, to tes-
tify she has been acquainted with the defendant
since about October, 1944, to date; that the defend-
ant rented two rooms from her since that time; that
she saw and talked to defendant almost dailv be-
tween then and August 15, 1945, that she knows of
her own personal knowledge and observation that
Japanese police agents and the Japanese sceerct
police, the Kempeitai, maintained a constant surveil-
144 Iva Ikuko Toguri D’ Aquino
lance over defendant during said period and that
defendant was in constant fear of them; that dur-
ing said period of time defendant continually told
her the United States would win the war against
Japan and that she hoped the U. 8. would win
quickly ; that she knows of her own knowledge and
observed that the defendant would not contribute
anything whatever to Japan or the Japanese people
that in anywise could be deemed to aid it or them
in any manner; that defendant refused to contrib-
ute old clothes to Japan; that she refused to make
any voluntary money contributions to Japan; that
the defendant would not voluntarily cooperate with
any request of the Japanese authorities, neighbor-
hood associations or organizations; that defendant
refused to attend fire drills and public meetings;
that Japanese police agents questioned this witness
repeatedly about the activities of the defendant,
about what the defendant did, her visits, who she
visited, who visited her and what the substance of
her conversations with other persons were; that
neighbors and police agents termed the defendant
as a spy against Japan and held her up to publhe
hatred; that defendant kept her constantly in-
formed during said period of time of the progress
of the U. 8. and Allied troops and told her that
anything she read in the Japanese papers or heard
on the radio to the contrary was nothing but false
Japanese propaganda; that she knows of her own
personal knowledge and observation that the de-
fendant took food to U. S. and Allied prisoners of
vs. United States of America 145
war held by the Japanese despite the fact that she
risked her own personal security in so doing.
14. Miss or Mrs. Yoneko Matsunaga, Tokyo,
Japan, a Japanese citizen, to testify that from
about August, 1944, to August, 1945, she was en-
gaged as a radio announcer at Radio Tokyo; that
she had been acquainted with the defendant since
August, 1944, that her voice is almost identical in
timbre, tonal quality and frequency range as that
of the defendant and that she knows this fact to
be true of her own knowledge by virtue of tests
made thereon and that her voice frequently during
said period of time has been confused with and
been mistaken for that of the defendant; that she
knows of her own knowledge and observation that
the defendant never wrote any radio script and that
defendant was not competent to write such script;
that defendant never broadcast any news, news
commentaries or propaganda for the Japanese;
that defendant never committed any of the acts and
things alleged in the indictment.
15. Charles Yoshii, Tokyo, Japan, a Japanese
citizen, to testify that he was employed at Radio
Tokyo during 1948 to August, 1945; that he has
been acquainted with the defendant since about
August, 1943; to testify to the nature, time, hour,
and character of the Zero Hour radio program
during said period; the names of the persons par-
ticipating therein, including the males and females
_ and the nature, extent and character of the partici-
pation of each; that the defendant never wrote or
146 Iva Ikuko Toguri D’ Aquino
composed any radio script of any character what-
ever and had neither the training nor the ability
to write radio script; the nature, character, extent
and time and duties of defendant’s employment;
that defendant never broadcast or uttered any state-
ment or did any of the unlawful things charged in
the indictment and that the never broadcast any
news, hews commentaries or propaganda for the
Japanese and never uttered any statement or broad-
cast any statement derogatory to the U.S. and its
allies or to the U. 8S. and allied cause and never
uttered any statement or broadcast any statement
in anywise favorable to Japan or its war effort.
16. Miss Foumy Saisho, Nippon Times, Tokyo,
Japan, a Japanese citizen, to testify that she was
a translator for Radio Tokyo from early 1943 to
Aug., 1945; that she has been acquainted with the
defendant since August, 1948; that she is acquainted
with all the U.S. and Allied prisoners of war who
were coerced into broadeasting for the Japanese
at Radio Tokyo during that time; to state the
names of each and every male and female who
broadeast on the Zero Hour program, the nature,
contents and character of their broadcasts and to —
distinguish the activities and employments of each
of those females from the defendant; to testify that —
the defendant never wrote or composed any radio
script and that she was not qualified so to do; that
the defendant never ad libbed on the radio and that ©
she never broadcast any news or propaganda for |
the Japanese or any matter of thing that was favor- ,
vs. United States of America 147
able to the Japanese or against the United States
and its Allies; that the defendant never did any-
thing whatever to help Japan; that in conversations
with the defendant during said period of time the
defendant stated to her that she was opposed to
Japan.
17. Mr. Hisashi Moriyama, Tokyo, Japan, a
Japanese citizen, and now a band leader in Tokyo;
to testify that he has been acquainted with the de-
fendant since about June, 1944; that he was em-
ployed at Radio Tokyo at that time and until August
15, 1945; that he was acquainted with the writers
and composers of the radio script used on the Zero
Hour program; that the defendant never wrote or
composed any of that script or any other radio
script; that he knows the nature, contents and char-
acter of all the radio script used on that program
and to testify thereto; that he was acquainted with
each of the females who broadeast on that program
and the nature and contents of their broadeasts and
the duties they performed; that the defendant never
made any news or propaganda broadcasts for the
Japanese and never broadcast anything detrimental
to or against the United States and its Allies.
18. Mr. Katsuo Okada, Tokyo, Japan, a Japa-
nese citizen, to testify that he has been acquainted
with the defendant since about October, 1944, and
that he conversed with her on an average of once
per week from then until August 15, 1945, in Tokvo,
Japan; that the defendant on practically each of
148 Iva Ikuko Togun D’ Aquino
those occasions told him Japan would lose the war,
that anything he read in Japanese newspapers to
the contrary was false propaganda; that she re-
peatedly told him of U. 8. and Allied successes in
the war; that the defendant at all times was loyal
to the United States and its Allies and opposed to
Japan.
19. Mr. Mugio Hattori, Tokyo, Japan, a Japa-
nese citizen, to testify that he visited the defendant
in Tokyo approximately once per month from July,
1941, to Dee. 8, 1941, and thereafter seven or eight
times in 1944, and up to August 15, 1945; that she
repeatedly informed him she was loyal to the United
States and its Allies and opposed to Japan, that the
United States would defeat Japan, that Japan was
the cause of the war and informed him that Japa-
nese reports of Japan’s successes in the war were
false; that the United States and the Allies were
gaining and would win the war and that she hoped
the U. S. would win the war quickly; that he re-
peatedly informed the defendant that she should
not talk too much against Japan or she would be
jailed.
20. Mr. George Nakamoto, Tokyo, Japan, a
Japanese citizen, to testify that he has _ been
acquainted with the defendant since about Novem-
ber 1, 1943; that he formerly was in charge of the
Zero Hour program at Radio Tokyo from Novem-
ber, 1943, to the fall of 1945; that sometime about
November, 1943, he brought and delivered to Radio
Tokyo an order or command from the Japanese
us. United States of America 149
Army headquarters to Mr. Takano, then manager
of the business office of Radio Tokyo, ordering him
to force the defendant to take a radio voice test;
to testify to the purpose of said test and the con-
tents of said order and the maker of said order;
that said Takano coerced defendant into such a
test, and that defendant took the test under duress
and over her protests; to testify to the names of
the males and females who conducted the Zero Hour
radio program; how that program originated, and
its purpose, and that the U. S. and Allied prisoners
of war who were coerced into broadcasting by the
Japanese authorities converted the Zero Hour pro-
eram into a program designed and utilized to aid
the cause of the Allies by bolstering up the morale
of U.S. and Allied troops by playing lively Amer-
ican and European music and broadcasting mes-
sages of U. S. and Allied prisoners of war; to
testify to the nature and duties of defendant’s occu-
pation during said period of time, the nature and
character of her employment, the hours and days
She worked and her absenees therefrom; that de-
fendant never wrote or composed any radio script;
that defendant never did anything and never broad-
east anything disloyal to the United States or its
Allies; that the defendant was kept under close sur-
veillance by the Kempeitai and metropolitan police;
that the defendant was loyal to the cause of the
U.S. and its Allies and opposed to Japan.
21. Douglas MacArthur, Supreme Commander
Allied Powers, and General, U. S. Army, G. H. Q.,
150 Iva Ikuko Toguri D’ Aquino
Tokyo, Japan, an American citizen, or his nominee,
to testify whether or not he or any military officer
under his command ordered or authorized the seiz-
ure of the defendant by U. 8S. troops on or about
September 5, 1945, and their detention and ques-
tioning of her on said date and on September 6,
1945, at the Yokohama New Grand Hotel in Yoko-
hama, Japan, and, if so, under what authority or
process; ‘and also to testify whether or not any
written authority or process issued for such pur-
poses and, if so, the nature and contents thereof
and to have the same read into evidence in this
proceeding ;
And also to testify whether or not he, or any
military officer under his command, ordered or
authorized the arrest of the defendant by U. S.
troops on or about October 17, 1945, at her home
at No. 396 Ikejiri Machi, Setagaya-Ku, Tokyo,
Japan, her imprisonment from said date to Novem-
ber 16, 1945, in the Yokohama Prison, Yokohama,
Japan, and thereafter from November 16, 1945, to
October 25, 1946, in the Sugamo Prison, Tokyo,
Japan, on which latter date she was released and
restored to her liberty, and, if so, under what
authority or process was ‘said arrest made, said
imprisonment inflicted wpon her and her said re-
lease made, and also whether or not said arrest was
made upon any charge or charges preferred against —
her-and, if so, by whom and what was the nature |
and contents thereof; whether or not she was given —
any hearing or trial on any such charge or charges —
vs. United States of America 151
and, if so, when and before what tribunal; and to
testify to what sentence or punishment was meted
out to her and upon what authority; and to produce
or have produced and read into evidence in this
proceeding the records relating to the defendant’s
said arrests, the charges preferred against her, if
any, the hearings or trial of defendant and sen-
tence or punishment imposed upon her, the said
two imprisonments and the releases of defendant
from said imprisonments.
22. Major General Charles Willoughby, U. S.
Army, Chief of the Counter Intelligence Corps,
U. S. Army, GHQ., Tokyo, Japan, an American
citizen, or his nominee, to testify to the same facts
hereinabove set forth as being the testimony de-
fendant expects from General Douglas MacArthur,
U.S. Army, and to produce such records and read
them into evidence herein.
23. U. 8S. Army Officer in Charge of Sugamo
Prison, Tokyo, Japan, an American citizen, to
testify to the facts and records concerning the im-
prisonment of the defendant in said prison from
on or about November 16, 1945, to October 25, 1946;
the authority for said imprisonment and release
therefrom on October 25, 1946, the charges, if any,
preferred against her, the name of her accuser, if
any, whether or not she was accorded a hearing or
trial thereon and, if so, by whom and under what
authority; the process or authority under which
she there was confined for said period of time; the
nature and circumstances of her release from said
\
152 Iva Ikuko Togurt D’ Aquino
imprisonment; and to produce the official records
of said prison relating to said incarceration and
release of the defendant and to read them into evi-
dence in this proceeding ;
And also to testify to the facts and records re-
lating to the confinement of defendant in said prison
from on or about August 26, 1948, to September 3,
1948; the authority and process, if any, for said
confinement, and to read said records into evidence
in this proceeding.
And the same officer, if he is in charge of the
Yokohama Prison records from Oct. 17, 1948, to
Nov. 15, 1948, to testify to the facts covered in
Paragraph 22 hereof.
24, U.8. Army Officer in Charge of Yokohama
Prison, Yokohama, Japan, a U.S. citizen, to testify
to the records of said prison concerning the incar-
ceration of the defendant there from on or about
October 17, 1945, to on or about November 16, 1945;
to testify on what authority she was so incarcerated
for said period of time, to testify whether or not
any formal written or oral charges were preferred
against her or any accusation made against her out
of which said incarceration and commitment arose;
the nature and contents of any such charge or accu-
sation; who or what authority preferred such charge
against her; to testify whether or not defendant |
was accorded any hearing or trial out of which said
commitment and imprisonment arose; and to pro- ©
duce the official records of said prison relating to
vs. United States of America 153
said incarceration and commitment of the defend-
ant and to read them into evidence in this proceed-
ing.
25. Father Desmoulins, Sophia University
Chapel, Tokyo, Japan, a citizen of France, to
testify that the defendant studied Catholicism and
received religious instruction from the Catholic
priesthood at Sophia University Chapel from Feb-
ruary, 1945, to the end of April, 1945; the days and
hours defendant there attended, and the time and
place defendant was married to Felipe J. d’Aquino,
a Portuguese national and citizen.
26. Dr. Y. Amano, near Camp Drake, Tokyo,
Japan, a Japanese citizen, to testify he was defend-
ant’s attending physician from July 1, 1941, to
August, 1945; to testify to defendant’s medical his-
tory during said period of time and to her mental
and physical condition; to show that defendant suf-
fered from beri beri and malnutrition in 19438, and
otitis media in 1944; to the loss of defendant’s baby
in 1948; to conversations with her in 1948 to Aug.,
1945, in which she informed him that Japan was
in the wrong in starting the war and that Japan
would be defeated and that the U. S. would win;
that she was loyal and devoted to the U. S. and
Allied cause and was opposed to Japan; that she
- Informed him that newspaper and radio reports be
heard of Japanese war successes were false and
that the truth was that the U. S. and its Allies were
advancing successfully and would soon defeat
154 Iva Ikuko Togurt D’ Aquino
Japan and that she hoped for a quick U. S. victory
over Japan.
27. Dr. Fumi Amano, a Japanese citizen, wife
of Dr. Y. Amano, at his address, to testify to the
same facts above outlined as to Dr. Y. Amano.
28. Mrs. Miyeko Oki, nee Furuya, Tokyo,
Japan, a Japanese citizen, to testify she has been
acquainted with the defendant since about March,
1944, that she was employed during November,
1943, and to August 15, 1945, at Radio Tokyo,
where she saw and talked to defendant several times
per week; that the defendant never wrote or com-
posed any radio script and that she never broadcast °
anything disloyal to the United States or anything
to aid the war efforts of Japan and that she never
committed any of the unlawful acts charged or re-
' ferred to in the indictment.
29. Mr. Ken Oki, Tokyo, Japan, a Japanese
citizen, to testify that he was assistant manager of
the Zero Hour radio program at Radio Tokyo,
Japan, from about November 1, 1943, to the fall
of 1944 when he became manager thereof until
about August 15, 1945; that he has been acquainted
with the defendant since about November 1, 1943;
to testify to the names of the males and females
who broadcast on the Zero Hour program and to
the nature, contents and character of each of their
radio announcements; to testify to the nature and
character of defendant’s employment at Radio
Tokyo, the hours and days she was present and |
vs. United States of America 155
the days she was absent, the compensation she re-
ceived therefor; that the defendant never wrote or
composed any radio seript whatever and that she
was not able so to do; that the defendant never
broadcast or uttered any statement against the
United States or its Allies or against the interests
of the U.S. or its Allies; that she way loyal and
sympathetic to the U. 8. and Allied cause; that she
never committed any of the unlawful acts alleged
in the indictment.
30. K. Uno, Tokyo, Japan, a Japanese citizen,
to testify that he was frequently at Radio Tokyo,
Tokyo, Japan, from November, 1948, to about Feb-
ruary, 1945; that he was acquainted with the de-
fendant during said period of time; that he knows
of his own knowledge and observation that the
defendant never wrote any radio script and never
said, uttered or broadcast any statement or state-
ments against the U. 8. and its Allies or against the
U. 8S. and Allied cause; that she never committed
any of the unlawful acts specified or referred to in
the indictment; that the defendant was compelled
to accept her employment at Radio Tokyo under
duress and that she protested against her said em-
ployment but was coerced into it by Mr. Takano,
manager of the business office of Radio Tokyo, on
or about November, 1948.
31. Mr. Ken Ishii, Tokyo, Japan, a Japanese
) citizen, to testify that he was employed at Radio
Tokyo, Japan, in 1944; that he has been acquainted
with the defendant since about January, 1944; what
y
156 Iva Ikuko Toguri D’ Aquino
while he was so employed he knows of his own
knowledge and observation that the defendant
neither wrote nor composed any radio script and
that she did not broadcast or do any of the unlaw-
ful acts alleged in the indictment.
32. Miss Mary Ishii, Tokyo, Japan, a British
citizen, sister of said Ken Ishi, to testify she was
employed at Radio Tokyo, Japan, from about Feb-
ruary, 1945, to about August 15, 1945; that she has
been acquainted with the defendant from about
February, 1945; that she saw the defendant almost
daily from then to August 15, 1945, and very fre-
quently talked to her; that the defendant never
wrote or composed any radio script and never said,
uttered or broadcast any news or propaganda for
the Japanese.
33. Chief of Police, Setagaya Ward, Tokyo,
Japan, a Japanese citizen, to testify that the rec-
ords of his department show several registrations
thereby by the defendant; to testify to the facts of
said registrations from the original records thereof
and to read the written registrations into evidence;
to testify to the purpose for which said registra-
tions were made and under what authority they
were required to be made; and to testify that said
police department from July, 1941, to August, 1945,
investigated the defendant, her activities and move-
ments and kept her under constant surveillance and
to testify to the purpose and reasons therefor and
to testify that the defendant was regarded as being
vs. United States of America 157
dangerous to the security of Japan and as a spy
for the U. S., and to produce and read said records
into evidence in this action.
34. Chief of Police, Shiba Ward, Tokyo, Japan,
a Japanese citizen, to testify that the records of
his department show several registrations thereby
by the defendant; to testify to the facts of said
registrations from the original records thereof and
to read the written registrations into evidence; to
testify to the purpose for which said registrations
were made and under what authority they were
required to be made; and to testify that said police
department from July, 1941, to August, 1945, in-
vestigated the defendant, her activities and move-
ments and kept her under constant surveillance
and to testify to the purpose and reasons therefor
and to testify that the defendant was regarded as
being dangerous to the security of Japan and as a
spy for the U. 8., and to produce and read said
records into evidence in this action.
39. Chief of Police, Atsugi, Japan, a Japanese
citizen, to testify that the records of his department
show several registrations thereby by the defend-
ant; to testify to the facts of said registrations from
the original records thereof and to read the written
registrations into evidence; to testify to the purpose
for which said registrations were made and under
what authority they were required to be made; and
to testify that said police department from July,
1941, to August, 1945, investigated the defendant,
her activities and movements and kept her under
158 Iva Ikuko Togurt D’ Aquino
constant surveillance and to testify to the purpose
and reasons therefor and to testify that the defend-
ant was regarded as being dangerous to the security
of Japan and as a spy for the U.S., and to produce
and read said records into evidence in this action.
36. Chief of Metropolitan Police, Tokyo, Japan,
a Japanese citizen, to testify that the records of his
department show several registrations thereof by
the defendant; to testify to the facts of said regis-
trations from the original records thereof and to
read the written registrations into evidence; to
testify to the purpose for which said registrations
were made and under what authority they were
required to be made; and to testify that said police
department from July, 1941, to August, 1945, in-
vestigated the defendant, her activities and move-
ments and kept her under constant surveillance
and to testify to the purpose and reasons therefor
and to testify that the defendant was regarded as
being dangerous to the security of Japan and as a
spy for the U. 8., and to produce and read said
records into evidence in this action.
37. Officer in Charge of the records of the Kem-
peitai, Tokyo, Japan, either a U. S. or a Japanese
citizen, to testify that the records of the Kempeitai
show that the Kempeitai constantly investigated
the history, activities and movements of the de-
fendant from July, 1941, to August, 1945, and that
it regarded the defendant as being a person dan-
gerous to the security of Japan and as being a spy
us. Uiuted States of America 159
for the United States and kept her under continu-
ous surveillance during said period of time, and to
produce and read said records into evidence in this
action.
38. Mr. Hanamaki Tazaki, Tokyo, Japan, a
Japanese citizen, to testify that he was a liaison
agent between Japanese Army Headquarters and
Radio Tokyo between Aug., 1943, and Aug., 1945;
that, as such he was familiar with and knew the
person or persons who originated and conducted
the Zero Hour radio programs; to testify to the
persons, male and female, who broadcast on that
program, the nature, contents and character of
those broadcasts during the life of said program;
that said program was utilized by the U. 8. and
Allied prisoners of war who broadcast thereon as
an instrument to serve the U. S. and Allied cause
by broadcasting lively American and European
musical records and reading messages of U. 8. and
Allied prisoners of war held by the Japanese so
that the U.S. and Allied military authorities would
learn that they survived death and learn of their
whereabouts and that their relatives’ morale would
be boosted by learning they were alive.
39. Charles C. Cousens, 7 Bapaune Road, Mos-
man, Sydney, N.S.W., Australia, a citizen of Great
Britain, to testify that he was a Major in the Aus-
tralian Army held as a prisoner of war by the
Japanese in ''okyo from early 1943 to Aug. 15,
1945; that he and some twenty-five (25) other U.S.
160 Iva Ikuko Toguri D’ Aquino
and Allied military and civilian personnel held as
prisoners of war by the Japanese at Bunka Prison
in Tokyo Bay, Tokyo, Japan, under duress and
threats against their lives were coerced into acting
as radio announcers and broadcasters at Radio
Tokyo, Japan; that he and other prisoners of war
so held under duress originated the Zero Hour pro-
gram on or about November, 1943, which was a
regular program thereon until Aug., 1945; that said
program was designed and used by said prisoners
of war for the purpose of aiding the U. 8. and
Allied cause and so was used during the whole of
said period of time; that the music recordings
broadeast over that program were of classical,
semi-classical and popular American and EKuropean
types of music of lively and familiar types they
selected for the purpose of bolstering up the morale
of U.S. and Allied troops who picked up the same
in receivers and especially was this so because the
troops had no other source of such musie available
to them; that the program was otherwise devoted
to the broadcasting of messages from U. S. and
Allied prisoners of war held by the Japanese to
U.S. and Allied troops and civilians so that U. S.
military authorities would learn of their survival
and whereabouts and the morale of their relatives
at the front and at home be heightened by the news
of their survival; that Mr. Takano, acting on Japa-
nese Army orders compelled the defendant, under
duress and over her protests, to have a test made
vs. United States of America 161
of her voice at Radio Tokyo; that defendant was
compelled to accept the employment designated for
her by the Japanese authorities and accepted her
employment under duress and over her repeated
protests; that the defendant never wrote or com-
posed any radio script; that she never broadcast
any news, news commentaries or propaganda for
the Japanese and never served the interests of
Japan; that she never said, uttered or broadcast
any statement or statements derogatory to or
against the U.S. or its Allies or against the U. S.
and Allied cause; that the defendant never com-
mitted any of the unlawful acts alleged or referred
to in the indictment; that he talked to the defend-
ant almost daily from about November, 1943, to
about June, 1944, and almost daily the defendant
stated she was hoping the U. S. and its Allies would
soon defeat the Japanese and that the U. 8. would
defeat Japan, that she was loyal to the U. S. and
its Allies and the U.S. and Allied cause; that the
defendant at risk of great personal danger to her-
self secretly conveyed food, medicine and clothing
to prisoners of war in need thereof; that the de-
fendant was constantly under surveillance by the
Kempeitai and metropolitan police.
40. John Holland, Hong Kong, China, a British
citizen, to testify that he was a prisoner of war
held by the Japanese in Tokyo in 19438 to 1945; that
he has been acquainted with the defendant since
about November, 1943; that he was present at the
162 Iva Ikuko Toguri D’ Aquino
time and place Mr. Takano, then manager of the
business office of Radio Tokyo, decided to order the
defendant to accept the employment he and others
had selected her for without her knowledge; that
when informed thereof by Mr. Takano the defend-
ant protested acceptance thereof and that there-
upon Mr. Takano threatened her and thereafter,
she, under duress and over her protests was com-
pelled to comply; that the defendant never wrote
any radio script; that she never committed any of
the unlawful acts charged or referred to in the
indictment.
41. The General Manager, a Japanese citizen,
or subordinate officer under him having charge of
the records of employment and compensation paid
employees, of Radio Tokyo, Tokyo, Japan, to pro-
duce and to testify from and to read into evidence
the records of said company showing the period of
time the defendant was employed by said company,
from 1948 to Aug., 1945, the days and hours she
worked there, the capacity in which she worked, the
days she absented herself therefrom; the rates of
pay she received therefor; the time cards filled out
by her and the original employment checks she re-
ceived during said time.
42. Mr. Hifumi, a Japanese citizen, whose first
name is unknown to affiant, but who was a Major
in the Japanese Army in 1943 to 1945 and a friend
of the above-mentioned Hanamaki Tazaki, and may
vs. United States of America 163
be located through him, to testify to the same facts
defendant expects to elicit as testimony of said
Hanamaki 'T'azaki.
43. Mr. Takabataki, a Japanese citizen, whose
first name is unknown to affiant, but who was em-
ployed in the Japanese Foreign Office, to testify to
the same facts defendant expects to elicit as testi-
mony of said Hanamaki ‘T'azaki.
Affiant is informed and believes and therefore
alleges on such information and belief that each
of the foregoing named witnesses, together with
other witnesses in Japan who may be found to be
necessary and material witnesses for the defendant,
is ready, willing and able to come to San Francisco,
California, to testify in person on behalf of the
defendant at the trial herein provided his or her
travel and subsistence expenses and witness fees
will be defrayed, or to have his or her testimony
taken by deposition abroad at his or her place of
residence.
Affiant alleges that the failure or refusal of the
Court to authorize the production of the said wit-
nesses from abroad to testify in person for the de-
fendant at the trial or the failure of the Government
to authorize them to be produced for said purposes
at the expense of the Government will result in a
failure of justice and deprive her of a fair and im-
partial trial and of the right of obtain witnesses
in her favor and of the due process of law guar-
164 Iva Ikuko Toguri D’ Aquino
anteed her by the provisions of the Sixth and Fifth
Amendments of the U. 8. Constitution.
/s/ IVA IKUKO TOGURI
D’AQUINO,
Affiant.
Subseribed and sworn to before me this Ist day
of March, 1949.
[Seal] /s/ C. W. CAI I EVAR
Clerk, U. 8S. District Court, Northern District of
California.
Receipt of copy acknowledged.
[Endorsed]: Filed March 1, 1949.
ey
District Court of the United States, Northern
District of California, Southern Division
At A Stated Term of the District Court of the
United States for the Northern District of Califor-
nia, Southern Division, held at the Court Room
thereof, in the City and County of San Francisco,
on Monday, the 14th day of March, in the year of
our Lord one thousand nine hundred and forty-nine.
Present: The Honorable Michael J. Roche,
District Judge.
[ Title of Cause. ]
ORDER
(Minute order that motion to take certain
depositions be granted and that remaining
motions be denied. )
vs. United States of America 165
This case came on for hearing of motion for sub-
poena, motion to take depositions. Defendant was
present in custody of U.S. Marshal and with her
attorney, Wayne Collins, Esq., Hon. Frank J. Hen-
nessy, U. S. Atty., for U.S. After hearing the
arguments of the attorneys, it is Ordered that said
motion to take certain depositions be granted; and
that the remaining motions be denied, in accordance
with a signed order this day filed. Ordered defend-
ant remanded to custody of U.S. Marshal.
[Title of District Court and Cause. |
Order Denying Seven Motions and Granting De-
fendant’s Motion For ‘Taking Depositions
Abroad and Authorizing Expense Thereof and
Travel and Subsistence Expenses of Defend-
ant’s Attorney For Attendance At Such Exam-
inations |
The eight consecutive motions of the defendant
filed herein on March 1, 1949, coming on regularly
to be heard the 14th day of March, 1949, Wayne M.
Collins, Esq., appearing for the defendant and
orally arguing in favor of the grant of each of said
motions and Frank J. Hennessy, U.S. Attorney
appearing for the plaintiff and arguing in opposi-
tion thereto, and the matter thereupon being sub-
mitted to the Court for decision and the matter
being duly considered. by the Court,
166 Iva Ikuko Toguri D’ Aquino
It Is Ordered, as follows:
(1) That defendant’s Motion No. I entitled
‘‘Motion For Order Authorizing And Directing
Issuance of Subpoenas Requiring Attendance of
Witnesses In A Foreign Country At The Trial
Herein At The Expense Of The Government And
For Service Thereof’? be and the same hereby is
denied;
(2) That defendant’s Motion No. IT entitled
‘‘Motion To Dismiss The Indictment’’ be and the
same hereby is denied;
(3) That defendant’s Motion No. III entitled
‘‘Motion That Court Conduct Part of Trial By Jury
In Tokyo, Japan, Hong Kong, China, and Sydney,
Australia,’’ be and the same hereby is denied.
(4) That defendant’s Motion No. IV entitled
‘‘Motion To Dismiss The Indictment,’’ be and the
same hereby is denied.
(5) That defendant’s Motion No. V_ entited
‘‘Motion To Postpone Trial Of The Cause And
Hither To Discharge Defendant From Custody Or :
To Admit Her To Bail Pending Such Time As The
}
Government Provides For The Production Of De- ©
fendant’s Witnesses From Abroad To Testify In |
Person At The Trial Herein,’’ be and the same |
hereby is denied.
(6) That defendant’s Motion No. VI entitled —
‘‘Motion To Dismiss The Indictment,’’ be and the
same hereby is denied.
us. Umted States of America 167
(7) However, as to Motion No. VII entitled
“Motion For Order Authorizing And Directing
Issuance Of Subpoenas Requiring Attendance Of
Witnesses Abroad At The Taking Of Their Deposi-
tions And Providing For The Taking Of Deposi-
tions Of Foreigners and Citizens Abroad, At The
Expense Of The Government, Including The Ex-
penses Of Travel And Subsistence Of Defendant’s
Attorney And Investigator-Interpreter For Inter-
viewing Witnesses And For Attendance At The
Examinations,’’ the Court finds that the defendant
is indigent and does not have sufficient means and
is actually unable to pay the fees of her witnesses
for her defense and cannot bear the expense of the
taking of the depositions of her witnesses in Japan
and Hong Kong; that the witnesses named in her
motion and affidavit in support thereof are material
and necessary witnesses for her and that their tes-
timony and evidence is necessary and material for
her defense at the trial of the cause; that she cannot
safely proceed to trial of said action without the
testimony of said witnesses and the production of
‘the documentary evidence mentioned in said affi-
davit; that she cannot bear the expenses of travel
and subsistence of her attorney for attendance at
the said examinations, that is, at the taking of said
depositions, and that the plaintiff consents that the
depositions of defendant’s witnesses in Japan and
Hong Kong there may be taken before any person,
-at any time or place, upon any notice, and in any
manner, commencing on or about April 3, 1949, and
continuing thereafter daily until completed, as eoun-
168 Iva Ikuko Toguri D’ Aquino
sel for the respective parties, or their associates or
representative attorneys there shall agree, and
counsel for the parties having informed the Court
they will execute and file herein a written stipulation
thereto within a reasonable time, and the Court find-
ing and concluding that the failure or refusal of
the Court to order or authorize the taking of said
depositions at the expense of the United States
Government and the payment of her counsel’s travel
and subsistence expenses to attend the taking of
said depositions at the expense of the United States
Government would deprive the defendant of sub-
stantial rights and would result in a failure of
justice and that, therefore, defendant’s said Motion
No. VII should be granted, save and except her
request for travel and subsistence expenses for an
investigator-interpreter to accompany her counsel
to assist him in locating witnesses, obtaining their
statements and acting as interpreter and translator
for him from English into Japanese and Japanese
into English in connection therewith which is de-
nied,
Wherefore It Is Ordered as follows:
(a) That the oral depositions of each of the wit-
nesses for the defendant named in said motion, or
such of them as the defendant or her counsel may
deem necessary, together with the oral depositions
of such other witnesses for the defendant as her
counsel may wish to take in Japan and Hong Kong
there shall be taken before any person, at any time
or place, upon any notice, and in any mannet!,
= oe
vs. United States of America 169
commencing on or about April 3, 1949, and con-
tinuing thereafter daily until completed in Japan
and Hong Kong, as counsel for the defendant and
eounsel for the plaintiff, or their associate or repre-
sentative attorneys there shall agree upon;
(b) That the expense of the taking of said de-
positions, estimated not to exceed the sum of Three
Thousand ($3,000.00) Dollars, shall be paid by the
United States Government.
(c) That the expenses of travel, estimated not
to exceed the sum of One Thousand Eight Hundred
($1,800.00) Dollars, together with subsistence ex-
penses of Ten Dollars per day for a period of time
estimated not to exceed Forty Five (45) days,
amounting in the aggregate to a sum estimated not
to exceed Four Hundred Fifty ($450.00) Dollars,
of the defendant’s attorney, Theodore Tamba, Esq.,
associated with Wayne M. Collins, Esq., for attend-
ing said examinations, that is, the taking of said
depositions, shall be paid by the United States Gov-
ernment.
(8) That defendant’s Motion No. VIII entitled
‘‘Motion To Dismiss Indictment’’ be and the same
hereby is denied.
Dated: March 15th, 1949.
/s/ MICHAEL J. ROCHE,
United States District Judge.
Receipt of a copy of the above Order is hereby
admitted this 15th day of March, 1949.
/s/ FRANK J. HENNESSY,
U.S. Attorney.
170 Iva Ikuko Toguri D’ Aquino
29 SF WA/CT-AO/ PBA
1949 Mar 23 p.m. 3:06
Teletype Division
Washington 3-23-49 506P
C. W. Calbreath, Clerk U.S. District Court SF
Re case Tokyo Rose, defendant’s attorney Theo-
dore T'amba authorized by court to travel to Japan
and Hong Kong please deliver to him from your
book necessary government transportation requests
signed by you as issuing officer covering travel in
accordance with court order of March 15, 1949.
ELMORE WHITEHURST.
15 1949
RVS 514P
San Francisco, Calif.
March 25, 1949.
Received from C. W. Calbreath, Clerk U.S. Dis-
trict Court, Government Travel request USca 30578
for air transportation from San Francisco, Cali- —
fornia to Hong Kong, China and return, in the sum
of $1,306.80.
/3/ THEODORE TAMBA.
[Endorsed]: Filed March 15, 1949.
us. United States of America 171
[Title of District Court and Cause. ]
STIPULATION TO TAKING ORAL
DESIGNATIONS ABROAD
It is stipulated between the parties hereto that
the oral depositions of each and all of the defend-
|
ant’s witnesses mentioned in her motion for the
production of said witnesses at the trial herein and
for the taking of their depositions, which motions
were filed herein on March 1, 1949, together with
the oral depositions of any other witnesses who
reside abroad in Japan, or Hong Kong, China, who
hereafter may be designated by the defendant or
her attorney, Wayne M. Collins, or his associate,
;
Theodore Tamba, Esq., as such a witness, may be
taken before any consular officer of the United
States in Japan or Hong Kong, China, or before
any other person or persons to be mutually decided
on between the respective attorneys for the parties
hereto while they are in Japan or Hong Kong for
said purpose commencing on or about April 3, 1949,
and continuing thereafter until completed, and that
such be taken in any manner upon which they there
may agree, provided however, that all objections of
each of the parties hereto, including objections to
the form of the questions propounded to witnesses,
and to relevancy, materiality and competency
thereof, and the defendant’s objections to the use
of the depositions or any part of the depositions
172 Iva Ikuko Toguri D’ Aquino
by the plaintiff on the plaintiff’s case in chief, shall
be reserved to the time of trial herein.
Dated: March 17, 1949.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
/3s/ FRANK J. HENNESSY,
U.S. Attorney.
/s/ TOM DeWOLFE,
Sp. Asst. to the Attorney
General.
So Ordered: March 22nd, 1949.
/3/ MICHAEL J. ROCHE,
United States District Judge.
[Endorsed]: Filed March 22, 1949.
[Title of District Court and Cause. ]
NOTICE
To Frank J. Hennessy, United States Attorney, and
To Tom DeWolfe, Special Assistant to the At-
torney General, Attorneys for the Plaintiff:
You and each of you will please take notice that
on Monday, the 11th day of April, 1949, at the
Courtroom of the above-entitled Court, 3rd Floor,
Post Office Building, 7th and Mission Streets, San
Francisco, California, at the hour of 10 o’clock
A. M. of said day, or so soon thereafter as counsel
ean be heard, the defendant will bring on for hear-
ing the within motion.
Dated: April 5, 1949.
/3s/ WAYNE M. COLLINS,
Attorney for Defendant.
\
vs. United States of America Li3
[Title of District Court and Cause. ]
MOTION FOR LISTS OF WITNESSES AND
VENTIREMEN
The defendant moves this Court, under Title 18
USCA, Sec. 3482, (formerly Sec. 562), for the order
of this Court forthwith requiring the plaintiff or its
eounsel to supply the defendant with a list of the
names of the witnesses to be produced on the trial
for proving the indictment herein together with a
statement giving the place of abode of each such
witness and also for its order requiring the plaintiff
or its counsel to supply the defendant at least three
entire days before the trial with a list of the venire-
men stating the abode of each venireman.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
Points and Authorities In Support Of Motion
Title 18 USCA, Sec. 3432 (formerly Sec. 562)
reads as follows:
‘‘A person charged with treason or other capital
offense shall at least three entire days before com-
mencement of trial be furnished with a copy of the
indictment and a list of the veniremen, and of the
witnesses to be produced on the trial for proving
the indictment, stating the place of abode of each
venireman and witness.’’
174 Iva Ikuko Toguri D’ Aquino
The provision is mandatory. See Logan v. U.
144 U. S. 268, 304, and McNabb v. U. S. (CCA-
Tenn), 123 Fed. 2d. 848, 853, rev. on other grounds,
318 U. S. 332. The purpose of the statute is to en-
able a defendant to investigate the jurors and the
witnesses.
Inasmuch as the majority of the plaintiff’s wit-
nesses who appeared for the plaintiff for grand
jury purposes appear to have been brought by the
Government from Japan and elsewhere outside the
geographical jurisdiction of this Court it is to be
presumed such witnesses, and others, will be pro-
duced as plaintiff’s witnesses at the trial herein. In-
asmuch as said witnesses are outside this judicial
district and their names and places of abode have
not been revealed to the defendant it will take de-
fendant’s counsel more than three days preceding
the commencement of the trial to conduct an in-
vestigation of such witnesses abroad and outside
the jurisdiction of this court.
Respectfully submitted,
/3/ WAYNE M. COLLINS,
Attorney for Defendant.
Receipt of copy acknowledged.
[Endorsed]: Filed April 5, 1949.
vs. United States of America 175
[Title of District Court and Cause. ]
NOTICE
To Frank J. Hennessy, United States Attorney, and
To Tom DeWolfe, Special Assistant To the
Attorney General, Attorneys For the Plaintiff:
You and each of you will please take notice that
on Monday, the llth day of April, 1949, at the
Courtroom of the above-entitled Court, 3rd Floor,
Post Office Building, 7th and Mission Streets, San
Francisco, California, at the hour of 10 o’clock
A. M. of said day, or so soon thereafter as counsel
ean be heard, the defendant will bring on for hear-
ing the within motion.
Dated: April 5, 1949.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
[Title of District Court and Cause. ]
1
MOTION FOR ORDER AUTHORIZING AND
DIRECTING ISSUANCE OF SERVICE OF
SUBPOENAS REQUIRING ATTEND-
ANCE OF WITNESSES AT THE TRIAL
HEREIN AT THE EXPENSE OF THE
GOVERNMENT
The defendant, Iva Ikuko Toguri d’Aquino, moves
the Court for its order authorizing and directing
the issuance and service of subpoenas requiring the
176 Iva Ikuko Togurt D’ Aquino
attendance of the hereinafter named witnesses, re-
siding at the places hereinafter set forth, at the
trial herein at the expense of the plaintiff, the U.S.
Government.
The names, addresses and places of residence of
the said witnesses are as follows:
1. George H. Henshaw, 2025 Benedict Canyon
Drive, Beverly Hills, California.
2. Chiyeko Ito, 3118 Blanchard Street, Los An-
geles 33, California.
3. Amy Masuda, Los Angeles, California.
4. James F. Whitten, Torrance, Los Angeles
County, California.
5. Martin Pray, 962 Ackerman Avenue, Syra-
cuse 10, New York State.
6. May EH. Hagedorn, 4211 Olive Drive, Everett,
Washington.
7. Norman Reyes, 1611 Eastland Avenue, Nash-
ville, Tenn.
8. Mrs. Norman Reyes, 1611 Eastland Avenue,
Nashville, Tenn.
9. John E. Tunnicliffe, Route 4, Box 233, Grants
Pass, Oregon.
10. Mark L. Streeter, 1008 Cassia Street, Idaho
Falls, Idaho.
11. John David Provo, Address is believed to be |
at a U.S. military camp in Texas or Maryland.
—_—
vs. United States of America 177
12. Major Wallace E. Ince, Presidio, San Fran-
cisco, California.
This motion is made upon the ground that each
of the named witnesses is a necessary and material
witness for the defendant on the trial of said action
and a witness whose testimony is necesary and ma-
terial to the defendant in her defense to said action.
The facts to which each of the said witnesses is
expected to testify and the materiality of that tes-
timony is set forth in the affidavit of the defendant
filed in support of this motion which is incorporated
herein by reference for said purpose.
The defendant cannot safely proceed to trial of
said action without the production of the person
of each of said witnesses in court at the trial herein
to testify in person so that the individual testimony,
attitude and demeanor of each can be observed,
considered and weighed by the Court and the jury.
This motion is also made upon the ground that
the defendant is an indigent person and does not
have sufficient means and is actually unable to pay
the fees for the issuance and service of said sub-
poenas for said witnesses and is actually unable to
pay the costs of transportation of said witnesses
to attend the said trial of the action. Each of said
witnesses is ready, willing and able to attend the
trial and testify on behalf of the defendant in the
event he or she is served with a subpoena and is
paid the necessary witness fees and transportation
expenses.
The failure or refusal of the Court to order or
authorize the issuance and service of said subpoenas
178 Iva Ikuko Toguri D’ Aquino
and the production of said witnesses at the trial
herein at the expense of the Government will result
in a failure of justice and deprive the defendant
of her substantial constitutional and statutory rights
to a fair and impartial trial by jury and to obtain
witnesses in her favor, in violation of the provisions
of the Sixth Amendment and the due process of
law guaranty of the Fifth Amendment of the Con-
stitution.
This motion will be made and based upon the
notice of this motion, said motion, affidavit in sup-
port thereof, and upon all the records, pleadings,
files, court orders and documents herein, and upon
the similar motion heretofore made herein for like
service of subpoenas and for the taking of deposi-
tions filed herein on March 1, 1949.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
Points and Authorities
Rules 17 and 26, Rules of Criminal Procedure.
Fifth Amendment, U. 8. Constitution.
Sixth Amendment, U. S. Constitution.
Title 18 USCA, Sec. 3005.
Respectfully submitted,
/3s/ WAYNE M. COLLINS,
Attorney for Defendant.
vs. United States of America 179
Affidavit In Support Of Motion
Northern District of California,
State of California,
City and County of San Francisco—ss.
Iva Ikuko Toguri d’Aquino being first duly sworn,
deposes and says: that she is the defendant in the
above-entitled action and is detained under process
of this Court, without bail, in San Francisco County
Jail No. 3, Dunbar and Washington Streets, San
Francisco, California; that she is an adult person
over the age of twenty-one (21) years; that ever
since on or about July 25, 1941, she has continuously
resided in Tokyo, Japan, where, on April 19, 1945,
she was lawfully united in marriage to one, Felipe
J. d’Aquino, who then and ever since his birth has
been and still is a national and citizen of Portugal
residing in Tokyo, Japan; that she thereby and
thereon, pursuant to the law of Portugal, as also
the law of Japan, as also by the law of all other
civilized nations and by international law, became
and ever since then continuously has been and now
is a national and citizen of Portugal and in 1945
was formally naturalized as a Portuguese national
by said marriage and by formal registration of said
marriage as such a citizen of Portugal at the office
of the Consul of Portugal at Tokyo, Japan; that
ever since her said marriage she has resided at No.
396 Ikejiri Machi, Setagaya-Ku, Tokyo, Japan, with
her said husband. :
180 Iva Ikuko Toguri D’ Aquino
On August 26, 1948, defendant was arrested by
agents of the United States, acting under orders of
the Attorney General of the United States, and
thereupon imprisoned in the Sugamo Prison, Tokyo,
Japan, and thereafter was forcibly taken aboard
the S. S. General F. R. Hodges, a U. 8S. transport
vessel on which she was brought to San Francisco,
California, on September 25, 1948, and while said
vessel was in progress of docking at said port she
was seized by agents of the U. 8. Federal Bureau
of Investigation upon a purported complaint filed
in this Court on September 25, 1948, was brought
before the U. S. Commissioner in this District and
thereafter was indicted in this cause which is now
pending in this court.
The defendant is an indigent; aside from used
clothing and a few personal effects, the reasonable
value of which does not exceed Twenty Five ($25.00)
Dollars, she possesses the following assets only, viz.,
the equivalent of the sum of approximately One
Hundred ($100.00) Dollars on deposit in the Postal
Savings Bank in Tokyo, jointly with her husband
in Tokyo, Japan, household furniture, dishes, trunk,
sewing machine and utensils of the reasonable value
of One Hundred ($100.00) Dollars, and a remote
claim or right, subservient to the right of the Attor-
ney General as the Alien Property Custodian, in
and to certain real property situated in Los Angeles
County, California, described as follows, to-wit:
Lots 42 and 57 of the South Gate Tract in the
Rancho Tajauta, as per map recorded in Book 13,
vs. United States of America 181
Pages 14 and 15 of Maps in the office of the County
Recorder of said County, and portion of the 538.28
acre track of land allotted to Jose Maria Abila in
the partition of Rancho Tajauta, Case number 1200
of the 17th Judicial District Court in the County of
Los Angeles.
Which said property she is informed and believes
has an approximate market value of Three Thou-
sand Five Hundred ($3,500.00) Dollars, the interest
of the defendant therein, however, being at most a
disputable claim and hence of substantially no value
whatever to her.
By reason of her said poverty and indigeney the
defendant does not have sufficient means and is ac-
tually unable to bear the expense of producing her
witnesses, hereinafter named, or any of them, to
testify in person in her defense at the trial herein,
or to bear the expense of their travel, subsistence
and witness fees for attending the trial herein or
to have issued and served upon them subpoenas
requiring them to appear and testify at the trial
herein.
That each of the witnesses, hereinafter named, is
a necessary and material witness for the defendant
on the trial of said action and the testimony of each
is necessary and material to the defendant in her
defense of said indictment. |
That the defendant cannot safely proceed to a
trial of said action without the testimony of said
witnesses.
182 Iva Ikuko Toguri D’ Aquino
The witnesses whose testimony is necessary and
material to be given in person at the trial herein,
their places of residence, their nationalities and
eitizenships which are unknown to defendant but
which she believes to be as hereinafter set forth,
and the material and necessary testimony they are
expected to give, in substance and effect, are as
follows:
1. George H. Henshaw, 2025 Benedict Canyon
Drive, Beverly Hills, California, a U.S. citizen, to
testify that he was an ensign in the U. 8S. Navy
who from 1942 to Aug. 15, 1945, was held as a
prisoner of war by the Japanese at Tokyo, Japan;
that he saw the defendant in June or July of 1944
in Tokyo and during said time was acquainted with,
saw and conversed with various Allied officers and
personnel held prisoners of war by the Japanese and
who, under duress, were compelled to work at Radio
Tokyo, Japan; that although all of said prisoners
of war were held under coercion and duress they,
nevertheless, did not serve the purposes of their
oppressors but did their best to aid and comfort
the U. S. and Allied cause; that the defendant did
not compose any radio seript; and that the Zero
Hour program of Radio Tokyo in nowise served the
purposes of the Japanese but was designed and con-
ducted by the U. 8S. and Allied prisoners to aid the
U.S. and Allied cause.
2. Chiyeko Ito, 3118 Blanchard Street, Los An-
geles 33, California, a U.S. citizen, to testify that
vs. Umted States of America 183
she sailed to Japan in 1941 on the same boat as the
defendant; that she thereafter was employed by the
Domei News Agency in Tokyo; that she corre-
sponded with the defendant in Japan between Dee.
7, 1941, and Aug. 15, 1945, and frequently saw and
conversed with her between Nov. 1, 1948, and Aug.
15, 1945; that during said time the defendant ex-
pressed her loyalty to the U. S. and Allied cause and
her confidence that the U. 8. and its Allies were in
the right and would win the war; that the defend-
ant was kept under constant surveillance by the
Japanese police authorities.
3. Amy Masuda, Los Angeles, California, a U.S.
citizen, to testify that between Nov. 1, 1943, and
Aug. 15, 1945, she was employed as a typist at Radio
Tokyo, in Tokyo, Japan; that she was acquainted
with the defendant during said period and saw her
frequently and observed her at work; that the de-
fendant never wrote or composed any radio script;
that the defendant was compelled by Mr. Takano
of Radio Tokyo to have a voice test made; that
Kempeitai agents were at Radio Tokyo and that
defendant and all the U. 8S. and Allied prisoners of
war there forced to labor were held in duress by
the Japanese and were in fear of their lives.
4. James F. Whitten, Torrance, Los Angeles
County, California, a U. 8. citizen, to testify that
from about Nov. 1, 1943, to Aug. 15, 1945, he was
184 Iva Ikuko Toguri D’ Aquino
~aU.S. naval officer and stationed at various U. 8.
naval stations and on various U. S. naval vessels in
Southwestern Pacific Ocean areas; that from about
Nov. 1, 1948, to Aug. 15, 1945, he daily listened to
and monitored the radio broadcasts from Radio
Tokyo, Tokyo, including the broadcasts of the Zero
Hour program emanating therefrom; that no female
voice on the Zero Hour program broadcast any
propaganda for the Japanese or any matter or thing
against the U.S. or its Allies; that the female voices
thereon broadeast introductions to musical records
played on said program and that this was limited
to statements of the types of musical recordings, the
composers thereof, the orchestras or soloists thereon
and that the said introductions and musical record-
ings were of a lively nature that bolstered up the
morale of U. 8. and Allied listeners within listening
range.
5. Martin Pray, 962 Ackerman Avenue, Syra-
cuse 10, New York State, a U. S. citizen, to testify
that he was a Sergeant in the U. S. Army stationed
at Sugamo Prison, T’okyo, from about Nov. 16, 1945,
to about Oct. 6, 1946; that he saw the defendant
there almost daily during said period of time; that
the defendant there was treated by the U. S. mili-
tary and civil authorities as not being a U.S. citizen
but as being a foreign national and was denied the
privileges accorded citizen prisoners.
6. May E. Hagedorn, 4211 Olive Drive, Everett,
Washington, a U.S. citizen, to testify that from
‘
}
i
us. Umted States of America 185
June 26, 19438, to Aug. 14, 1945, she was engaged
as a Civilian radio interceptor of shortwave radio
broadcasts from Radio, Tokyo, Japan, and moni-
tored the war prisoner’s programs thereon, includ-
ing the Zero Hour program thereon; that no female
announcer broadcasting therefrom at any time dur-
ing said period broadcast any propaganda for the
Japanese: or any news broadcast or commentaries
or did any ad libbing thereon; that the prisoner of
war messages broadcast thereon were restricted to
announcements of the names of U. 8S. and Allied
prisoners of war captured and held by the Japanese,
their whereabouts and conditions; that the musical
recordings announced by each of the female voices
thereon were lively American and European classi-
cal, semi-classical and popular types; that no unlaw-
ful announcements against the U. S. or its Allies
and no announcements in favor of the Japanese
were made by any of the female voices thereon.
7. Norman Reyes, 1611 Eastland Avenue, Nash-
ville, Tenn., a Philippine national lawfully admitted
to and residing in the United States, to testify that
he was a Lieutenant in the U. 8. Army from some-
time in 1942 to Aug. 15, 1945; that he was captured
by the Japanese and held as a prisoner of war by
them from sometime in 1942 to Aug. 15, 1945; that
he and many other U.S. and Allied military, naval
and marine officers and civilian personnel were held
under coercion and duress by the Japanese after
being taken prisoner by the Japanese; that he was
held by the Japanese in Tokyo; that from about
186 Iva Ikuko Toguri D’ Aquino
Nov. 1, 1948, to Aug. 15, 1945, while he so was held
under duress he almost daily saw and talked to the
defendant and observed her in the performance of
her employment; that the defendant during all of
said period was loyal and devoted to the U. 8. and
Allied cause and that he and other prisoners of war
held by the Japanese observed and knew of her said
loyalty ; that the defendant never wrote or composed
any radio script of any nature whatever; that the
defendant never announced or broadcast any propa-
ganda for the Japanese; that she never announced
or broadcast any news or news items for the Japa-
nese; that she never committed any unlawful act
against the U.S. or its Allies; that she never served
any purpose of the Japanese; that she aided and
comforted the U. S. and its Allies and U. 8S. and
Allied prisoners of war held by the Japanese by
secretly conveying to them news of U.S. and Allied
military and naval successes against Japan for the
purpose of bolstering up their morale and that her
aid and comfort did bolster up their morale; that
she secretly conveyed to said prisoners of war
tobacco, food, medicine and other needed supphes
for the purpose of aiding the U.S. and its Allies.
8. Mrs. Norman Reyes, 1611 Eastland Avenue,
Nashville, Tenn., the wife of Norman Reyes above
mentioned, and a Philippine national residing in the
U.S., to testify that between Nov. 1, 19438, and Aug.
15, 1945, she was frequently present at the office
of Radio Tokyo in Tokyo, Japan; that she then was
acquainted with the defendant and saw her fre-
{
vs. Umted States of America 187
quently; that the defendant never wrote any radio
script and that she never broadcast or announced
via radio any propaganda or news for the Japanese;
that all the U. 8. and Allied prisoners of war who
there, under coercion, intimidation and duress and
in fear of their lives, were forced to labor by the
Japanese did their utmost to defeat the purpose of
their Japanese oppressors and were successful in
achieving that result; that the Zero Hour program
was restricted to reading of prisoner of war mes-
sages to U.S. and Allied troops to give their where-
abouts and to bolster up the morale of the U.S. and
Allied listeners and to the playing of familiar lively
classical, semi-classical and popular American and
_ European music for the pleasure of U.S. and Allied
troops.
9. John E. Tunnicliffe, Route 4, Box 233, Grants
Pass, Oregon, a U.S. citizen, to testify that he was
held asa U.S. civilian prisoner of war by the Japa-
nese from 1942 to Aug. 15, 1945; that from about
| Nov. 1, 1943, to Aug. 15, 1945, he was held as such a
prisoner in Tokyo, Japan; that he, along with a
number of other U. 8. and Allied prisoners of war
were compelled, under threats against their lives, to
work at forced occupations by their Japanese cap-
tors; that agents of the Japanese secret police, the
thought-control police termed the Kempeitai were
maintained at Radio Tokyo to hold the said prison-
ers of war under constant coercion; that they and
civilian aliens there forced to labor were held under
duress, that the Zero Hour program in nowise aided
188 Iva Ikuko Toguri D’ Aquino
the Japanese but, on the contrary, was designed by
the prisoners of war in charge thereof to aid the
U. S. and Allied cause by bolstering up U.S. and
Allied morale by broadcasting prisoner of war mes-
sages to Allied troops and lively music to give
pleasure to Allied troops.
10. Mark L. Streeter, 1008 Cassia Street, Idaho
Falls, Idaho, a U. S. citizen, to testify that from
sometime in 1942 to about August 15, 1945, he was
held as an American prisoner of war by the Japa-
nese under duress in Tokyo, Japan; that he became
acquainted with the defendant about Nov., 1943;
that he saw her almost daily from said time to Aug.
15, 1945, at Radio Tokyo, and thereafter, over a
period of approximately five months’ time; that
during said periods of time he conversed with the
defendant; that he knows of his own knowledge
and observation that the defendant during all of
said times was loyal and devoted to the U. 8S. and
its Allies and the U. 8. and Allied cause; that the
defendant during said periods of time deliberately
concealed from the Japanese authorities informa-
tion concerning the activities of U. 8S. and Allied
prisoners of war which said activities were taken
by said prisoners against the Japanese authorities
and government; that the defendant continuously
aided and comforted U. S. and Allied prisoners of
war by secretly conveying to them news of U. 8.
and Allied military and naval successes for the
purpose of bolstering up their morale; that, at
vs. United States of America 189
great personal risk, she secretly delivered to said
prisoners of war tobacco, food, medicine and blank-
ets; that he knows of his own knowledge that the
defendant never composed or wrote any radio script
whatever for the Japanese or their government;
that the defendant never at any time whatever said,
uttered or broadeast any propaganda or news items
whatever, by radio or otherwise, for the Japanese;
that the defendant never committed any overt or
hostile act against the U.S. or any of its Allies but
that, on the contrary, she aided and comforted the
U. 8. and its Allies; that during said times the
defendant and many U.S. and Allied prisoners of
war were held by the Japanese under duress and
intimidation and were in fear for their own per-
sonal security.
11. John David Provo, whose address is_ be-
lieved to be at a U. S. Military Camp in Texas or
Maryland, a U. S. citizen, to testify that he was
held as a U. 8S. prisoner of war by the Japanese
from 1942 to about Aug. 15, 1945, in Tokyo; that
during said period of time he was intimidated,
coerced and kept under constant duress by the
Japanese; that during said period of time he fre-
quently saw the defendant in Tokyo at her place
of employment and observed her at her employment
and knows the nature thereof and that the defend-
-ant neither wrote any radio script nor committed
any overt or any other unlawful acts against the
U.S. or its Allies; that from his own knowledge
190 Iva Ikuko Toguri D’ Aquino
and observation the defendant at all of said times
was loyal and devoted to the U. S. and Allied cause
and that she actively aided and comforted U.S. and
Allied military, naval and marine officers and
civilian personnel held prisoners of war by the
Japanese by secretly conveying to them news of
U. S. and Allied military and naval successes to
bolster up their spirits and morale and by deliver-
ing to them tobacco, food and blankets of which
they were in dire need.
12. Major Wallace EK. Ince, also known as Ted
Wallace Ince, Presidio, San Francisco, California,
a U.S. citizen, to testify that from sometime in
1942 to Aug. 15, 1945, he was a U.S. prisoner of
war held by the Japanese under coercion and
duress; that from about Nov. 1, 1943, to sometime
in the spring of 1945, while he was so held by the
Japanese in Tokyo, Japan, he saw and talked to
the defendant almost daily; that from conversations
with her and from observing her he was aware that
she was loyal and devoted to the U. 8S. and its Allies
and to the cause of the U. 8. and its Allies; that
during said time he observed her at work and knows
of his own knowledge that she never wrote or com-
posed any radio script of any nature whatever and |
that she did not make any radio announcements or |
broadcasts of any news, news commentaries or
propaganda for the Japanese government, nation
or any of its agencies, citizens or subjects, or of
any matter or thing favorable to any of them; that
she did not announce or broadcast any statement —
{
vs. United States of America ‘191
or thing against the U. S. or its Allies; that she
aided and comforted U. 8S. and Allied prisoners of
war during said period by secretly conveying to
them news of Allied military, air force and naval
successes for the purpose of aiding and bolstering
up their morale which purpose it had in fact and
that she secretly, at great personal risk to herself,
delivered to U. S. and Allied prisoners of war, held
under duress by the Japanese, tobacco, food and
supplies in which they were of dire need for the
purpose of aiding and comforting said prisoners
of war and that such things did bolster up their
morale and did aid and comfort them to defeat the
purposes of the Japanese authorities.
Affiant alleges upon information and belief that
each of the foregoing named witnesses is ready,
willing and able to come to San Francisco to testify
in behalf of the defendant provided his or her travel
and subsistence expenses and witness fees will be
defrayed. cm
_ Affiant alleges that the failure or refusal of the
Court to authorize the production of the said wit-
nesses to testify in person for the defendant at the
trial herein or the failure of the Government to
authorize subpoenas to be issued and served upon
them and said witnesses to be produced at the trial
- herein for said purposes at the expense of the Gov-
ernment will result in a failure of justice and de-
prive her of a fair and impartial jury trial and of
her right to obtain witnesses in her favor and of
the due process of law guaranteed her by the pro-
192 Iva Ikuko Togurt D’ Aquino
visions of the Sixth and Fifth Amendments of the
U.S. Constitution.
/s/ IVA IKUKO TOGURI
D’AQUINO,
Affiant.
Subscribed and sworn to before me this 5th day
of April, 1949.
[Seal] /s/ C. W. CALBREATH,
Clerk, U. S. District Court, Northern District of
California.
Receipt of copy acknowledged.
[Endorsed]: Filed April 5, 1949.
—— ee
[Title of District Court and Cause. |
NOTICE
To Frank J. Hennessy, United States Attorney, and
to Tom DeWolfe, Special Assistant to the At-
torney General, Attorneys for the Plaintiff:
You and each of you will please take notice that
on Monday, the 25th day of April, 1949, at the
Courtroom of the above-entitled Court, 3rd Floor,
Post Office Building, 7th and Mission Streets, San —
Francisco, California, at the hour of 10 o’clock a.m. —
of said day, or so soon thereafter as counsel can be —
heard, the defendant will bring on for hearing the —
within motion.
Dated: April 21, 1949.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
vs. United States of America 193
[Title of District Court and Cause. ]
MOTION FOR POSTPONEMENT OF
TIME OF TRIAL
The defendant hereby moves the Court for its
order postponing the trial of the cause from May
16, 1949, to July 5, 1949, upon the ground and for
the reason that she has been informed by Theodore
Tamba, Esq., attorney associated with counsel for
defendant, who is presently engaged in taking the
depositions of defendant’s witnesses in Japan and
Hong Kong, that it will be impossible to complete
the taking of said depositions on or by May 16,
1949, due to the fact that the witnesses there to be
interviewed exceed forty in number, the residences
and places of occupation of such witnesses in Japan
are scattered not only in the Tokyo area but in cities
other than Tokyo, that the means of transportation
to locate, interview and arrange for the taking of
said depositions are inadequate which has occa-
sioned and occasions unexpected delay therein; that
the problems of locating, interviewing, and arrang-
ing for the taking of said depositions, including
arranging for interpreting from the Japanese to
the English language in connection therewith, are
more time consuming than originally estimated;
that the taking of said depositions can be completed
and the depositions returned to this Court on or
by July 5, 1949; that the defendant cannot safely
proceed to trial without the production of the testi-
mony of her witnesses who are in Japan and Hong
194 Iva Ikuko Toguri D’ Aquino
Kong and that she acquiesces in a postponement of
the trial of the cause for said purposes.
This motion will be made upon the pleadings,
records and files herein and upon the notice of this
motion and upon letters of Theodore Tamba, Esq.,
from Japan, to be offered in support of said motion
if the Court or counsel for plaintiff require them
to be offered in support thereof.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
Receipt of copy acknowledged.
[Endorsed]: Filed April 21, 1949.
District Court of the United States, Northern
District of California, Southern Division
At a Stated Term of the District Court of the
United States for the Northern District of Cali-
fornia, Southern Division, held at the Court Room
thereof, in the City and County of San Francisco,
on Monday, the 25th day of April, in the year of
our Lord one thousand nine hundred and forty-nine.
Present: The Honorable Michael J. Roche,
District Judge. .
[Title of Cause. |
ORDER
(Minute order authorizing issuance and
service of subpoenas and motion for list of
witnesses and veniremen to be continued to
May 2, 1949, and ordering case continued from
May 16, 1949, to July 5, 1949, for trial.)
This case came on this day for hearing as to the
|
|
{
|
\
f
I
r
vs. United States of America 195
following motions: motion to authorize issuance
and service of subpoenas, motion for list of wit-
nesses and veniremen, and motion to postpone date
of trial.
The defendant was present in custody of the
U. S. Marshal and with her attorney, Wayne Col-
lins, Esq., Hon. Frank J. Hennessy, U. 8. Atty.,
for U. S. On motion of Mr. Collins and with con-
sent of Mr. Hennessy, it is Ordered that the motion
to authorize the issuance and service of subpoenas
and the motion for a list of witnesses and venire-
men be continued to May 2, 1949. Further ordered,
on motion of Mr. Collins, that this case be continued
from May 16, 1949, to July 5, 1949, for trial.
[Title of District Court and Cause. ]
NOTICE
To Frank J. Hennessy, United States Attorney,
and to Tom DeWolfe, Special Assistant to the
Attorney General, Attorneys for the Plaintiff:
You and each of you will please take notice that
on Monday, the 9th day of May, 1949, at the Court
Room of the above-entitled Court, 3rd Floor, Post
Office Building, 7th and Mission Streets, San Fran-
eisco, California, at the hour of 10 o’clock a.m. of
said day, or as soon thereafter as counsel can be
heard, the defendant will bring on for hearing the
within motion.
| Dated: May 4, 1949.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
196 Iva Ikuko Toguri D’ Aquino
[Title of District Court and Cause. ]
MOTION FOR ORDER AUTHORIZING AND
DIRECTING ISSUANCE AND SERVICE |
OF SUBPOENAS REQUIRING ATTEND-
ANCE OF WITNESSES AT THE TRIAL
HEREIN AT THE EXPENSE OF THE
GOVERNMENT
The defendant, Iva Ikuko Toguri d’Aquino, ©
moves the Court for its order authorizing and
directing the issuance and service of subpoenas re-
quiring the attendance of the hereinafter named
witnesses, residing at the places hereinafter set
forth, at the trial herein at the expense of the’
plaintiff, the U. S. Government. |
The names, addresses and places of residence of |
the said witnesses are as follows: |
1. Willesden Cox, 2627 Honeaiee Pike, Knox- |
ville, Tenn. © |
2. Frank Fujita, Fort Sill, Oklahoma. |
3. Shigemi Mazawa, 4842 Winthrop St., Chicago,
I)hinois.
4. Jack Wisener, 4213 Red River Street, Austin, |
Texas. | |
{
——— ——
—
5. Yoneko Matsunaga, New Jersey.
6. Milton Glazier, Dover, Idaho. |
|
This motion is made upon the ground that each.
of the named witnesses 1s a necessary and material |
witness for the defendant on the trial of said action ‘
a
vs. United States of America 197
and a witness whose testimony is necessary and
material to the defendant in her defense to said
action.
The facts to which each of the said witnesses is
expected to testify and the materiality of that testi-
mony is set forth in the affidavit of the defendant
filed in support of this motion which is incorporated
herein by reference for said purpose.
The defendant cannot safely proceed to trial of
said action without the production of the person of
each of said witnesses in court at the trial herein
to testify in person so that the individual testimony,
attitude and demeanor of each can be observed, con-
sidered and weighed by the Court and the jury.
This motion is also made upon the ground that the
defendant is an indigent person and does not have
sufficient means and is actually unable to pay the
fees for the issuance and service of said subpoenas
for said witnesses and is actually unable to pay the
costs of transportation of said witnesses to attend
the said trial of the action. Each of said witnesses
SS
is ready, willing and able to attend the trial and
testify on behalf of the defendant in the event he or
she is served with a subpoena and is paid the nec-
essary witness fees and transportation expenses.
The failure or refusal of the Court to order or
authorize the issuance and service of said subpoenas
and the production of said witnesses at the trial
herein at the expense of the Government will result
in a failure of justice and deprive the defendant of
her substantial constitutional and statutory rights
198 Iva Ikuko Toguri D’ Aquino
to a fair and impartial trial by jury and to obtain
witnesses in her favor, in violation of the provisions
of the Sixth Amendment and the due process of law
guaranty of the Fifth Amendment of the Consti-
tution.
This motion will be made and based upon the —
notice of this motion, said motion, affidavit in sup-
port thereof, and upon all the records, pleadings,
files, court orders and documents herein, and upon
the similar motions heretofore made herein for like
service of subpoenas and for the taking of deposi-
tions filed herein on March 1, 1949, and April 5,
1949.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
Points and Authorities
Rules 17 and 26, Rules of Criminal Procedure.
Fifth Amendment, U. 8. Constitution.
Sixth Amendment, U. 8. Constitution.
Title 18 USCA, See. 3005.
Respectfully submitted,
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
1
|
;
US. Umted States of America 199
Affidavit in Support of Motion
Northern District of California,
State of California,
City and County of San Francisco—ss.
Iva Ikuko Toguri d’Aquino being first duly sworn,
deposes and says: that she is the defendant in the
above-entitled action and is detained under process
of this Court, without bail, in San Francisco County
Jail No. 3, Dunbar and Washington Streets, San
Francisco, California; that she is an adult person
over the age of twenty-one (21) years; that ever
since on or about July 25, 1941, she has continuously
resided in Tokyo, Japan, where, on April 19, 1945,
she was lawfully united in marriage to one, Felipe
J. d’Aquino, who then and ever since his birth has
been and still is a national and citizen of Portugal
residing in Tokyo, Japan; that she thereby and
thereon, pursuant to the law of Portugal, as also
the law of Japan, as also by the law of all other
-ivilized nations and by international law, became
and ever since then continuously has been and now
is a national and citizen of Portugal and in 1945
was formally naturalized as a Portuguese national
by said marriage and by formal registration of said
marriage as such a citizen of Portugal at the office
of the Consul of Portugal at Tokyo, Japan; that
ever since her said marriage she has resided at No.
396 Ikejiri Machi, Setagaya-Ku, Tokyo, Japan, with
her said husband.
200 Iva Ikuko Toguri D’ Aquino
On August 26, 1948, defendant was arrested by
agents of the United States, acting under orders of
the Attorney General of the United States, and
thereupon imprisoned in the Sugamo Prison, Tokyo,
Japan, and thereafter was forcibly taken aboard
the S. S. General F. R. Hodges, a U. S. transport
vessel on which she was brought to San Francisco,
California, on September 25, 1948, and while said
vessel was in progress of docking at said port she
was seized by agents of the U. S. Federal Bureau
of Investigation upon a purported complaint filed
in this Court on September 25, 1948, was brought
before the U. S. Commissioner in this District and
thereafter was indicted in this cause which is now.
pending in this court.
The defendant is an indigent; aside from used
clothing and a few personal effects, the reasonable
value of which does not exceed Twenty Five
($25.00) Dollars, she possesses the following assets
only, viz., the equivalent of the sum of approxi-
mately One Hundred ($100.00) Dollars on deposit
in the Postal Savings Bank in Tokyo, jointly with
her husband in Tokyo, Japan, household furniture,
dishes, trunk, sewing machine and utensils of the
reasonable value of One Hundred ($100.00) Dol-
lars, and a remote claim or right, subservient to the
right of the Attorney General as the Alien Property
Custodian, in and to certain real property situated
in Los Angeles County, California, described as fol-
lows, to-wit: |
us. United States of America 201
Lots 42 and 57 of the South Gate Tract in the
Rancho Tajauta, as per map recorded in Book
13, Pages 14 and 15 of Maps in the office of the
County Recorder of said County, and portion
of the 538.28 acre track of land allotted to Jose
Maria Abila in the partition of Rancho Tajauta,
Case number 1200 of the 17th Judicial District
Court in the County of Los Angeles.
which said property she is informed and believes has
an approximate market value of Three Thousand
Five Hundred ($3,500.00) Dollars, the interest of
the defendant therein, however, being at most a dis-
putable claim and hence of substantially no value
whatever to her.
By reason of her said poverty and indigency the
defendant does not have sufficient means and is actu-
ally unable to bear the expense of producing her
witnesses, hereinafter named, or any of them, to
testify in person in her defense at the trial herein,
or to bear the expense of their travel, subsistence
and witness fees for attending the trial herein or
to have issued and served upon them subpoenas
requiring them to appear and testify at the trial
herein.
That each of the witnesses, hereinafter named, is
a necessary and material witness for the defendant
on the trial of said action and the testimony of each
is necessary and material to the defendant in her
defense of said indictment.
That the defendant cannot safely proceed to a
trial of said action without the testimony of said
witnesses.
202 Iva Ikuko Togurt D’ Aquino
_ The witnesses whose testimony 1s necessary and
material to be given in person at the trial herein,
their places of residence, their nationalities and
citizenships which are unknown to defendant but
which she believes to be as hereinafter set forth,
and the material and necessary testimony they are
expected to give, in substance and effect, are as
follows:
1. Willesden Cox, 2627 Kingsten Pike, Knox-
ville, Tenn., a U. S. citizen, to testify that from
about January, 1944, to about Aug. 15, 1945, he
was a Major in the U. S. Army held as a prisoner
of war by the Japanese at Bunka Prison Camp,
Tokyo, Japan, along with a number of other cap-
tured U.S. and Allied officers, men and civilian per-
sonnel, each and all of whom were mistreated, in-
timidated, and held under duress by various Japa-
nese army authorities and were threatened with loss
of life if they failed to obey the orders of their
captors; that a number of said prisoners of war
were beaten by their captors for failure to obey the
orders and commands: of their captors; that all of
said prisoners of war were kept in a constant state
of fear by their Japanese captors and that each of
those who were forced to broadcast from Radio
Tokyo during said period of time and those who
wrote seript therefor did so under compulsion of the
Japanese and were not free agents but acted solely
under duress and coercion; that the defendant did
not write any script or broadcast any news or propa-
ganda for the Japanese but did aid and comfort the
vs. United States of America 203
prisoners of war by secretly delivering to them
tobacco, food and medicine at great personal risk
to herself; that Kempeitai agents kept said prison-
ers of war and said defendant under constant sur-
veillance and in fear. |
2. Frank Fujita, Fort Sill, Oklahoma, a U. S.
citizen, to testify that from about September, 1944,
to about Aug. 15, 1945, he was a U.S. soldier held
prisoner by the Japanese at Bunka Prison Camp,
Tokyo, Japan, along with a number of other U. S.
and Allied officers, men and civilian personnel, each
and all of whom were mistreated, undernourished
and starved, and threatened with loss of life for
failure to obey the commands of their captors; that
a number of the said prisoners of war were beaten
by the Japanese and all were held under continuous
duress; that Kempeitai agents kept them and the
defendant under continuous surveillance during said
period; that the defendant never wrote any script
and never broadcast or announced any news or
propaganda for the Japanese; that there were a
number of females announcing and broadcasting at
Radio Tokyo during said period of time and that
a number of the alien women broadcasters an-
nounced propaganda for the Japanese and to testify
to names of each of such female broadcasters and
the nature and types of their respective broadeasts ;
that the defendant never committed any unlawful
act and never made any unlawful statement against
the U.S. and its Allies and never in anywise aided
the Japanese; that the defendant, at great personal
204 Iva Ikuko Toguri D’ Aquino
risk to her own security, secretly conveyed food,
medicine and supplies to U. S. and Allied prisoners
of war at Bunka Prison Camp to aid and comfort
them and to assist them in defeating the purposes of
the Japanese and secretly conveyed to said prison-
ers of war news of Allied successes for the purpose
of bolstering up their morale.
3. Shigemi Mazawa, 4842 Winthrop St., Chicago,
Illinois, a U. 8. citizen, to testify that from some-
time in early 1944 to about Aug. 15, 1945, he was
forced to work at Radio Tokyo, Tokyo, Japan; that
he has been acquainted with the defendant since
early 1944 and saw her frequently at Radio Tokyo
during said period of time; that he knows the nature
of her employment there; that during said period
the defendant orally expressed her confidence and
faith in the U. S. and Allied cause and her sym-
pathy for the prisoners of war held at Bunka Prison
Camp who were coerced into working at Radio
Tokyo; that the defendant never wrote any radio
script during said period and never broadcast any
unlawful statement or committed any unlawful act
detrimental to the U. 8. and its Allies; that the de-
fendant was not a free agent while at Radio Tokyo -
and that none of the prisoners of war there forced
to work by the Japanese were free agents but all
were held under duress and were kept under con-
tinuous surveillance and in fear by the Japanese
secret military police; and to testify to the period
of time the defendant was. employed, the number
vs. United States of America 205
of days per week of that employment and the hours
thereof and the vacation periods she was given and
the number and times of her absences therefrom.
4. Jack Wisener, 4213 Red River Street, Austin,
Texas, a U.S. citizen, to testify that from the latter
part of 1943 to about Aug. 15, 1945, he was a lieu-
tenant in the U. 8. Army held under duress as a
prisoner of war by the Japanese at Bunka Prison
Camp, Tokyo, Japan, along with a number of other
U.S. and Allied prisoners of war likewise held by
the Japanese under duress; that a number of the
prisoners of war there held were slapped and beaten
by the Japanese for failure to comply with their
demands and to obey their orders; that they were
compelled to comply with the orders of their captors
to save their lives and that all of them suffered for
lack of food and most of them were rendered ill by
their mistreatment; that Kempeitai agents kept
them and the defendant under continuous sur-
veillance and in fear of their lives; that the defend-
ant aided and comforted the U. S. and Allied pris-
oners of war at Bunka Prison Camp by secretly
conveying to them news of U.S. and Allied military
and naval successes to bolster up their spirits and
by conveying secretly to them tobacco, food and
medicine for like purposes; that the defendant
neither wrote radio seript nor broadcast any unlaw-
ful statement against the U. S. and its Allies.
5. Yoneko Matsunaga, New Jersey, a U.S. citi-
zen, to testify that she has been acquainted with the
206 Iva Ikuko Togurt D’ Aquino
defendant since sometime during 1942; that she at-
tended a school in Japan when defendant was in
attendance at school; that she was employed at
Radio Tokyo between November 1, 1948, and Aug.
15, 1945; and that she is familiar with the dates,
hours, days and period of time the defendant was
employed in Japan, the nature and duties of said
employment; that during said period of time the
defendant expressed her confidence and faith in the
U. S. and Allied cause to her; that she frequentl'’y
saw defendant at her employment and knows of her
own knowledge that the defendant never wrote any
Radio seript and never broadcast any news or
propaganda for the Japanese; that there were a
number of female broadcasters employed at Radio
Tokyo on the Zero Hour program and on other
radio programs there broadcast, the names of said
females and the nature and content of their respec-
tive broadcasts; and to testify to the nature of the
defendant’s employment, the period of time she was
employed, the hours she worked and the days she
was absent therefrom.
6. Milton Glazier, Dover, Idaho, a U. S. eitizen,
to testify he was a soldier in the U. S. Army held as
a prisoner of war by the Japanese at Bunka Prison
Camp, Tokyo, Japan, from about May, 1945, to
about Aug. 23, 1945; that he and all other U. S.
and Allied prisoners of war then and there held by
the Japanese long had been held and all during said
period were hold under duress by the Japanese and
were intimidated, starved and coerced into obeying
vs. United States of America 207
commands of their oppressors; that a number of
said prisoners were coerced into working at Radio
Tokyo by the Japanese and that the said prisoners
endeavored to defeat and did succeed in defeating
the purpose of their Japanese oppressors; that the
defendant did not write any radio script and was
not employed so to do and to his knowledge never
broadcast anything detrimental to the U. 8S. and
Allied cause; that there were a number of females
who were announcers at Radio Tokyo and to dis-
tinguish them from the defendant and their duties
from the defendant’s; that he never heard the name
Tokyo Rose applied to the defendant in Japan; that
Kempeitai and police agents kept the defendant
and the prisoners of war under constant surveillance
and continuous fear.
Affiant alleges upon information and belief that
each of the foregoing named witnesses is ready,
willing and able to come to San Francisco to testify
in behalf of the defendant provided his or her travel
and subsistence expenses and witness fees will be
defrayed.
Affiant alleges that the failure or refusal of the
Court to authorize the production of the said wit-
nesses to testify in person for the defendant at the
trial herein or the failure of the Government to
authorize subpoenas to be issued and served upon
them and said witnesses to be produced at the trial
herein for said purposes at the expense of the Goy-
ernment will result in a failure of justice and de-
prive her of a fair and impartial jury trial and of
208 Iva Ikuko Togurt D’ Aquino
her right to obtain witnesses in her favor and of
the due process of law guaranteed her by the pro-
visions of the Sixth and Fifth Amendments of the
U.S. Constitution.
/s/ IVA IKUKO TOGURI
D’AQUINO,
Affiant.
Subseribed and sworn to before me this 4th day
of May, 1949.
[Seal ] /s/ C. M. TAYLOR,
Deputy Clerk, U. 8. District Court, Northern Dis-
trict of California.
Receipt of copy acknowledged.
[Endorsed]: Filed May 4, 1949.
[Title of District Court and Cause. ]
ORDER GRANTING DEFENDANT’S MOTIONS
FOR ORDER AUTHORIZING AND DI-
RECTING ISSUANCE AND SERVICE OF
SUBPOENAS OF DEFENDANT’S WIT-
NESSES AT TRIAL HEREIN AT THE EX-
PENSE OF THE GOVERNMENT
The motions of the defendant for order author-
izing and directing the issuance and service of
subpoenas requiring the attendance of defendant’s
witness at the trial herein at the expense of the
Government, filed herein on April 5, 1949, and May
us. United States of America 209
3, 1949, having come on to be heard on May 9, 1949,
Wayne M. Collins, Esq., appearing for the defend-
ant and Frank J. Hennessy, U. S. Attorney, appear-
ing for the plaintiff, and counsel for the plaintiff
having informed the Court that the plaintiff will
subpoena and produce at the trial the following per-
sons as witnesses for the plaintiff, namely, Amy
Masuda (Emi Matsuda or Masuda), Norman Reyes
and Wallace E. Ince, and counsel for the defendant
having orally informed the Court that Martin Pray
is expected to be in the vicinity of San Francisco
in the latter part of June, 1949, and the motions
having been duly argued and thereupon submitted
to the Court for decision and the motion being duly
considered by the Court,
The Court finds that each of the herein named wit-
nesses 1s a necessary and material witness for the
defendant at the trial of said action and is a wit-
ness whose testimony is necessary and material to
the defendant in her defense to said action; that
the defendant cannot safely proceed to a trial of
said action without the production of the person of
each said witness in court at the trial herein to
testify in person so that the individual testimony,
attitude and demeanor of each can be observed, con-
sidered and weighed by the Court and the jury at
the trial herein; and that the defendant is indigent
and does not have sufficient means and is actually
unable to pay the fees for the issuance and service
of subpoenas and the production of said witnesses
at the trial herein and is actually unable to pay the
210 Iva Ikuko Toguri D’ Aquino
expenses of transportation of said witnesses to at-
tend the said trial; and that a denial of said motions
would violate the provisions of Rule 17 RCP and
deprive the defendant of her substantial constitu-
tional rights to an impartial trial by jury and to
obtain witnesses in her favor, contrary to the pro-
visions of the Fifth and Sixth Amendments,
Now, Therefore, It Is Ordered that the defend-
ant’s said motions be granted and that subpoenas
be issued for the defendant’s witnesses, hereinafter
named, at their respective places of residence and
be served upon them and that the cost thereof and
their respective witness fees and travel expenses to
attend the trial of the cause herein be paid by the
United States Government, to-wit :—
1. George H. Henshaw, 2025 Benedict Canyon
Drive, Beverly Hills, California
2. Chiyeko Ito, 3118 Blanchard Street, Los An-
geles 33, California
3. James EF. Whitten, Torrance, Los Angeles
County, California
4. May EH. Hagedorn, 4211 Olive Drive, Everett,
Washington
). Mrs. Norman Reyes (Katherine Reyes), 6412
South Ellis Street, Chicago, Illinois
6. John E. Tunnicliffe, Route 4, Box 233, Grants
Pass, Oregon
7. Mark L. Streeter, 1008 Cassia Street, Idaho
Falls, Idaho
vs. United States of America 211
8. John David Provoo, Walter Reed Hospital,
Washington, D. C.
9. Willesdon (Williston) Cox, 2627 Kingsten
Pike, Knoxville, Tenn.
10. Frank Fujita, Electra, Texas
11. Shigemi Mazawa, 4842 Winthrop Street,
Chicago, Illinois
12. Jack Wisener, 4213 Red River Street, Aus-
tin, ‘Texas
13. Mrs. Albert Kanzaki, nee Yoneko Matsunaga,
o4 West 89th Street, New York, N. Y.
14. Milton Glazier, Dover, Idaho
15. Amy Masuda (Emi Matsuda or Masuda), 212
North Fremont Ave., Los Angeles 12, Calif.
16. Norman Reyes, 1611 Eastland Avenue, Nash-
Ville, ‘T’enn.
17. Captain Wallace E. Ince, Presidio, San
Francisco, Calif.
Provided, however, that in the event the plain-
tiff issues and has subpoenas served upon the said
Amy Masuda (Emi Matsuda or Masuda), Norman
Reyes and Major Wallace E. Ince or produces them
at the trial herein as witnesses for the plaintiff there
shall be no duplication in payment by the Govern-
ment of their transportation expenses and witness
fees.
And It Is Ordered that the defendant’s motion to
produce the defendant’s witness Martin Pray at
212 Iva Ikuko Toguri D’ Aquino
Government expense be denied, without prejudice,
however, to a subsequent like motion to be made by
defendant for the production of said witness, upon
a showing duly to be made.
Dated: May 18, 1949.
/s/ MICHAEL J. ROCHH,
U.S. District Judge.
Receipt of copy acknowledged.
[Endorsed]: Filed May 18, 1949.
[Title of District Court and Cause. |
ORDER
(Denying motion for lists of witnesses and
veniremen, and denying motion of defendant for
an order of this court to require the plaintiff to
supply defendant with a list of the names of
the witnesses to be produced on the trial for
proving the indictment, together with a state-
ment giving the place of abode of each such
witness, and also for its order requiring the
plaintiff to supply the defendant at least three
days before the trial with a list of the venire-
men stating the abode of each venireman. )
The above-entitled matter coming on for hearing
this 9th day of May, 1949, before the Court at 10:00
o’clock a.m., Frank J. Hennessy, United States At-
torney, appearing for plaintiff, and Wayne M. Col-
lins, appearing for the defendant, and the matter
us. United States of America 213
having been heard by the Court, and submitted to
the Court for decision,
It Is Hereby Ordered that the motion of defend-
ant for such order be, at this time, Denied without
prejudice to its renewal by the defendant hereafter.
Signed in open Court this 18th day of May, 1949.
/s/ MICHAEL J. ROCHE,
U.S. District Judge.
Approved As To Form, as provided by Rule 22:
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
[Endorsed]: Filed May 18, 1949.
[Title of District Court and Cause. ]
NOTICE
To Frank J. Hennessy, United States Attorney, and
to Tom DeWolfe, Special Assistant to the At-
torney General, Attorneys for the Plaintiff:
You and each of you will please take notice that
on the 31st day of May, 1949, at the Courtroom of
the above-entitled Court, 3rd Floor, Post Office
Building, 7th and Mission Streets, San Francisco,
California, at the hour of 10 o’clock a.m. of said
day, or so soon thereafter as counsel can be heard,
the defendant will bring on for hearing the within
motion.
Dated: May 24, 1949.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
214 Iva Ikuko Toguri D’ Aquino
[Title of District Court and Cause. ]
iE
MOTION FOR ORDER AUTHORIZING AND
DIRECTING ISSUANCE AND SERVICE
OF SUBPOENAS REQUIRING ATTEND-
ANCE OF WITNESSES AT THE TRIAL
HEREIN AT THE EXPENSE OF THE
GOVERNMENT
The defendant, Iva [kuko Toguri d’Aquino, moves
the Court for its order authorizing and directing the
issuance and service of subpoenas requiring the
attendance of the hereinafter named witnesses, re-
siding at the places hereinafter set forth, at the
trial herein at the expense of the plaintiff, the U. S.
Government.
The names, addresses and places of residence of
the said witnesses are as follows:
1. Albert Rickert, Care Pacific American Fish-
eries, Bellingham, Washington
2. Kdwin Kalbfleish, Jr., 1702 Bellevue, Rich-
mond Heights 17, Missouri
This motion is made upon the ground that each
of the named witnesses is a necessary and material
witness for the defendant on the trial of said action
and a witness whose testimony is necessary and ma-
terial to the defendant in her defense to said action.
The facts to which each of the said witnesses is
expected to testify and the materiality of that testi-
vs. United States of America 215
mony is set forth in the affidavit of the defendant
filed in support of this motion which is incorporated
herein by reference for said purpose.
The defendant cannot safely proceed to trial of
said action without the production of the person
of each of said witnesses in court at the trial herein
to testify in person so that the individual testimony,
attitude and demeanor of each can be observed, con-
sidered and weighed by the Court and the jury.
This motion is also made upon the ground that
the defendant is an indigent person and does not
have sufficient means and is actually unable to pay
the fees for the issuance and service of said sub-
poenas for said witnesses and is actually unable to
pay the costs of transportation of said witnesses
to attend the said trial of the action. Each of said
witnesses is ready, willing and able to attend the
trial and testify on behalf of the defendant in the
event he is served with a subpoena and is paid the
necessary witness fees and transportation expenses.
The failure or refusal of the Court to order or
authorize the issuance and service of said subpoenas
and the production of said witnesses at the trial
herein at the expense of the Government will result
in a failure of justice and deprive the defendant of
her substantial constitutional and statutory rights
to a fair and impartial trial by Jury and to obtain
witnesses in her favor, in violation of the provisions
of the Sixth Amendment and the due process of law
guaranty of the Fifth Amendment of the Consti-
tution.
216 Iva Ikuko Toguri D’ Aquino
This motion will be made and based upon the
notice of this motion, said motion, affidavit in sup-
port thereof, and upon all the records, pleadings,
files, court orders and documents herein, and upon
the similar motion heretofore made herein for like
service of subpoenas and for the taking of deposi-
tions filed herein on March 1, 1949 and April 5, 1949.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
Points and Authorities
Rules 17 and 26, Rules of Criminal Procedure.
Fifth Amendment, U. S. Constitution.
Sixth Amendment, U. S. Constitution.
Title 18 USCA, See. 3005.
Respectfully submitted,
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
[Title of District Court and Cause.]
Affidavit in Support of Motion
Northern District of California,
State of California,
City and County of San Francisco—ss.
Iva Ikuko Toguri d’Aquino being first duly sworn,
deposes and says: that she is the defendant in the
above-entitled action and is detained under process
us. United States of America 217
of this Court, without bail, in San Francisco County
Jail No. 3, Dunbar and Washington Streets, San
Francisco, California; that she is an adult person
over the age of twenty-one (21) years; that ever
since on or about July 25, 1941, she has continu-
ously resided in Tokyo, Japan, where, on April 19,
1945, she was lawfully united in marriage to one,
Felipe J. d’Aquino, who then and ever since his
birth has been and still is a national and citizen of
Portugal residing in Tokyo, Japan; that she thereby
and thereon, pursuant to the law of Portugal, as
also the law of Japan, as also by the law of all other
civilized nations and by international law, became
and ever since then continuously has been and now —
is a national and citizen of Portugal and in 1945
was formally naturalized as a Portuguese national
by said marriage and by formal registration of said
marriage as such a citizen of Portugal at the office
of the Consul of Portugal at Tokyo, Japan; that
ever since her said marriage she has resided at No.
396 Ikejiri Machi, Setagaya-Ku, Tokyo, Japan, with
her said husband.
On August 26, 1948, defendant was arrested by
agents of the United States, acting under orders
of the Attorney General of the United States, and
thereupon imprisoned in the Sugamo Prison, Tokvo,
Japan, and thereafter was forcibly taken aboard the
S.S. General F. R. Hodges, a U. S. transport vessel
on which she was brought to San francisco, Cali-
fornia, on September 25, 1948, and while said vessel
was in progress of docking at said port she was
218 Iva Ikuko Togurt D’ Aquino
seized by agents of the U. 8S. Federal Bureau of In-
vestigation upon a purported complaint filed in this
Court on September 25, 1948, was brought before
the U. S. Commissioner in this District and there-
after was indicted in this cause which is now pend-
ing in this court.
The defendant is an indigent; aside from used
clothing and a few personal effects, the reasonable
value of which does not exceed Twenty Five
($25.00) Dollars, she possesses the following assets
only, viz., the equivalent of the sum of approxi-
mately One Hundred ($100.00) Dollars on deposit
in the Postal Savings Bank in Tokyo, jointly with
her husband in Tokyo, Japan, household furniture,
dishes, trunk, sewing machine and utensils of the
reasonable value of One Hundred ($100.00) Dollars,
and a remote claim or right, subservient to the right
of the Attorney General as the Alien Property Cus-
todian, in and to certain real property situated in
Los Angeles County, California, described as fol-
lows, to-wit:
Lots 42 and 57 of the South Gate Tract in the
Rancho Tajauta, as per map recorded in Book
13, Pages 14 and 15 of Maps in the office of the
County Recorder of said County, and portion
of the 538.28 acre track of land allotted to Jose
Maria Abila in the partition of Rancho Tajauta,
Case number 1200 of the 17th Judicial District
Court in the County of Los Angeles.
which said property she is informed and believes
has an approximate market value of Three Thousand
vs. United States of America 219
Five Hundred ($3,500.00) Dollars, the interest of
the defendant therein, however, being at most a dis-
putable claim and hence of substantially. no value
whatever to her.
By reason of her said poverty and indigeney the
defendant does not have sufficient means and is actu-
ally unable to bear the expense of producing her
witnesses, hereinafter named, or any of them, to
testify in person in her defense at the trial herein,
or to bear the expense of their travel, subsistence
and witness fees for attending the trial herein or to
have issued and served upon them subpoenas requir-
ing them to appear and testify at the trial herein.
That each of the witnesses, hereinafter named, is
a necessary and material witness for the defendant
on the trial of said action and the testimony of each
is necessary and material to the defendant in her
defense of said indictment.
That the defendant cannot safely proceed to a
trial of said action without the testimony of said
witnesses. :
The witnesses whose testimony is necessary and
material to be given in person at the trial herein,
their places of residence, their nationalities and citi-
zenships which are unknown to defendant but which
she belives to be as hereinafter set forth, and the
material and necessary testimony they are expected
to give, in substance and effect, are as follows:
1. Albert Rickert, Care Pacific American Fish-
eries, Bellingham, Washington, a U.S. citizen, to
testify that he was a non-commissioned officer in the
220 Iva Ikuko Toguri D’ Aquino
U. S. Marine Corps held as a prisoner of war by
the Japanese along with over twenty-five other U.S.
and Allied officers and men and civilian personnel,
each of whom he is to identify, at Bunka Prison
Camp, Tokyo, Japan, from about November, 1943,
to about August 15, 1945; that said persons were
coerced and intimidated by their oppressors into
broadcasting for the Japanese at Radio Tokyo under
threats of the Japanese authorities that if they re-
fused to obey they would be executed; that they
were beaten by their Japanese oppressors and were
starved and that they were forced to eat leaves, cats
and dogs to sustain their lives; to identify the de-
fendant and the female announcers at Radio Tokyo
and to state their respective activities during said
period of time and to relate the conditions under
which they and the said prisoners were compelled
to labor and suffer and to the fact that the Kem-
peitai kept them all under constant surveillance and
fear; that the said prisoners secretly received to-
bacco, food and medicine from the defendant and
others who sustained them in their efforts to defeat
the purposes of the Japanese; that a number of said
prisoners made complaints against their said mis-
treatment to the Japanese authorities.
2. Hidwin Kalbfleish, Jr., 1702 Bellevue, Rich-
mond Heights, 17, Missouri, a U. 8. citizen, to
testify that he was a U. 8. army officer who was
taken prisoner by the Japanese in 1942 and there-
after was detained by them at Bunka Prison Camp,
Tokyo, Japan, from October, 1942, or earlier, to the
vs. Umted States of America 221
summer of 1945, along with over twenty-five other
U.S. and Allied officers and men and civilian per-
sonnel; that during said period said persons were
held under duress and were intimidated and coerced
into broadcasting via radio for their Japanese op-
pressors under threats against their lives if they
failed to obey; that they were mistreated, beaten
and starved by the Japanese; that the announcers
on the Zero Hour and other broadcast programs
were compelled to broadcast by the Japanese and
that, although they were kept under constant sur-
veillance by the Kempeitai and other Japanese au-
thorities, they managed to defeat the purposes of
the Japanese and to relate the methods employed in
so doing; to identify the male and female an-
nouncers on those programs and to testify to the
nature and contents of their broadcasts and the
names of the persons who composed the script there-
for; that a number of persons, including the de-
fendant, secretly conveyed food to the said prisoners
of war to sustain them; that he and other prisoners
complained to the Japanese authorities about the
conditions under which they were forced to live and
to produce copies of his and their written com-
plaints and reports of their suffering so made.
Affiant alleges upon information and belief that
each of the foregoing named witnesses is ready,
willing and able to come to San Francisco to testify
in behalf of the defendant provided his or her
travel and subsistence expenses and witness fees
will be defrayed.
222 Iva Ikuko Toguri D’ Aquino
Affiant alleges that the failure or refusal of the
Court to authorize the production of the said wit-
nesses to testify in person for the defendant at the
trial herein or the failure of the Government to
authorize subpoenas to be issued and served upon —
them and said witnesses to be produced at the trial
herein for said purposes at the expense of the Gov-
ernment and will result in a failure of justice and
deprive her of a fair and impartial jury trial and
of her right to obtain witnesses in her favor and
of the due process of law guaranteed her by the pro-
visions of the Sixth and Fifth Amendments of the
U.S. Constitution.
/3s/ IVA IKUKO TOGURI
D’AQUINO,
Affiant.
Subscribed and sworn to before me this 24th day
of May, 1949.
[Seal] /s/ C. M. TAYLOR,
Deputy Clerk, U. 8. District Court, Northern Dis-
trict of California.
Receipt of copy acknowledged.
[Endorsed]: Filed May 24, 1949.
vs. United States of America 223
[Title of District Court and Cause. ]
ORDER GRANTING DEFENDANT’S MOTION
FOR ORDER AUTHORIZING AND DI-
RECTING ISSUANCE AND SERVICE OF
SUBPOENAS OF DEFENDANT’S WIT-
NESSES AT TRIAL HEREIN AT THE EX-
PENSE OF THE GOVERNMENT
The motion of the defendant for order authorizing
and directing the issuance and service of subpoenas
requiring the attendance of defendant’s witness at
the trial herein at the expense of the Government,
filed herein on May 24, 1949, having come on to be
heard on May 31, 1949, Wayne M. Collins, Esq.,
appearing for the defendant and Frank J. Hen-
nessy, U. 8. Attorney, appearing for the plaintiff,
and the motion having been duly argued and there-
upon submitted to the Court for decision and the
motion being duly considered by the Court,
The Court finds that each of the herein named
witnesses iS a necessary and material witness for
the defendant at the trial of said action and is a
witness whose testimony is necessary and material
to the defendant in her defense to said action; that
the defendant cannot safely proceed to a trial of
said action, without the production of the person of
each said witness in court at the trial herein to
testify in person so that the individual testimony,
attitude and demeanor of each can be observed, con-
sidered and weighed by the Court and the jury at
the trial herein; and that the defendant is indigent
224 Iva Ikuko Togurt D’ Aquino
and does not have sufficient means and is actually
unable to pay the fees for the issuance and service
of subpoenas and the production of said witnesses
at the trial herein and is actually unable to pay the
expenses of transportation of said witnesses to at-
tend the said trial; and that a denial of said motions
would violate the provisions of Rule 17 RCP and
deprive the defendant of her substantial constitu-
tional rights to an impartial trial by jury and to
obtain witnesses in her favor, contrary to the pro-
visions of the Fifth and Sixth Amendments,
Now, Therefore, It Is Ordered that the defend-
ant’s said motions be granted and that subpoenas be
issued for the defendant’s witnesses, hereinafter
named, at their respective places of residence and be
served upon them and that the cost thereof and their
respective witness fees and travel expenses to attend
the trial of the cause herein be paid by the United
States Government, to-wit :—
1. Albert Rickert, Care Pacific American Fish-
eries, Bellingham, Washington
2. Edwin Kalbfleish, Jr., 1702 Bellevue, Rich-
mond Heights 17, Missouri
Dated: June Ist, 1949.
/8/ MICHAEL J. ROCHE,
U.S. District Judge.
Receipt of copy acknowledged.
[Endorsed]: Filed June 1, 1949.
vs. Umted States of America 225
[Title of District Court and Cause. ]
MOTION FOR LISTS OF WITNESSES
AND VENIREMEN
The defendant moves this Court, under Title 18
USCA, Sec. 3482, (formerly Sec. 562), for the order
of this Court requiring the plaintiff or its counsel
to supply the defendant with a list of the names of
the witnesses to be produced on the trial for prov-
ing the indictment herein together with a statement
giving the place of abode of each such witness and
also for its order requiring the plaintiff or its coun-
sel to supply the defendant at least three entire days
before the trial with a list of the veniremen stating
the abode of each venireman.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
Points and Authorities in Support of Motion
Title 18 USCA, Sec. 3482 (formerly Sec. 562)
reads as follows:
‘‘A person charged with treason or other capital
offense shall at least three entire days before com-
mencement of trial be furnished with a copy of the
indictment and a list of the veniremen, and of the
witnesses to be produced on the trial for proving
the indictment, stating the place of abode of each
venireman and witness.’’
The provision 1s mandatory. See Logan v. U. 8S.
144 U. S. 268, 304, and McNabb v. U. 8S. (CCA-
226 Iva Ikuko Togurt D’ Aquino
Tenn), 123 Fed. 2d. 848, 853, rev. on other grounds,
318 U. S. 332. The purpose of the statute is to
enable a defendant to investigate the jurors and the
witnesses.
Respectfully submitted,
/3/ WAYNE M. COLLINS,
Attorney for Defendant.
Receipt of copy acknowledged.
[Endorsed]: Filed June 16, 1949.
[Title of District Court and Cause. ]
MOTION FOR SUPPLEMENTAL ORDER AU-
THORIZING ADDITIONAL SUBSIST-
ENCE EXPENSES TO BE PAID DEFEND-
ANT’S COUNSEL FOR ATTENDING
EXAMINATIONS OF WITNESSES
Defendant moves the Court for its order author-
izing the Government to pay to her counsel Theo-
dore Tamba, Esq., the additional sum of Three Hun-
dred Dollars ($300.00) as and for his subsistence
expenses while engaged in the taking of depositions
of defendant’s witnesses in Japan in this cause.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
State of California,
City and County of San Francisco—ss.
Theodore lamba, being first duly sworn, deposes
and says: that on March 25, 1949, he departed by
vs. United States of America 227
plane for Japan via the Northwest Airline and on
arrival there located witnesses for the defense, inter-
viewed them and took some thirty one (31) deposi-
tions for and on behalf of the defendant in the fore-
going cause; that he returned by plane via said
Northwest Airline and arrived in San Francisco,
California, on the night of June 7, 1949; that travel-
ing to and from Japan and the taking of said depo-
sitions consumed a total of seventy-five (75) days;
that heretofore, by order of this Court made and
entered herein on March 15, 1949, his subsistence
expenses, at the rate of $10 per day, was estimated
to amount to a sum of $450 covering an estimated
period of forty-five (45) days and was authorized
to be paid by the Government; by reason of the fact,
that the taking of the necessary and material depo-
sitions necessarily consumed a total of seventy-five
(75) days, that is to say, thirty (80) days in addi-
tion to the number of days originally estimated and
provided for by the said order of this Court, he
requests an order of this Court authorizing that the
said sum of three hundred dollars ($300.00) be paid
to him by the Government for said subsistence.
/s/ "THEODORE TAMBA.
Subscribed and sworn to before me this 16th day
of June, 1949.
[Seal ] /s/ ERNEST BESIG,
Notary Public in and for the City and County of
San Francisco, State of California.
[Endorsed]: Filed June 16, 1949.
228 Iva Ikuko Toguri D’ Aquino
[Title of District Court and Cause. ]
MOTION FOR PRODUCTION OF DOCU-
MENTARY EVIDENCE
(Rule 17(¢) RCP)
Defendant moves the Court for its order directing
Frank J. Hennessy, U. S. Attorney, and Tom De-
Wolfe, Special Assistant to the Attorney General,
attorneys for the plaintiff, to produce before the
above-entitled Court, for inspection by the defend-
ant and her counsel, at a time to be determined by
the Court prior to the trial or prior to the time when
they are to be offered or sought to be offered in evi-
dence or used at the trial herein, the following
documents :—
1. The original, or copies of, letters, radiograms,
wireless messages and other written memoranda, in-
cluding requests, orders, instructions or process of
the Attorney General, the Department of Justice or
its agents, addressed or sent to the Supreme Com-
mander, Allied Powers (SCAP), Tokyo, Japan, the
Commander of the U. 8. Eighth Army in Japan, the
Counter Intelligence Corps, U. S. Army, in Japan,
the Commanding Officer of Sugamo Prison in
Tokyo, Japan, the Commanding Officer of Yoko-
hama Prison in Yokohama, Japan, the Secretary of
State and Department of State in Washington, and
to its consular or other agent or agents in Japan,
and replies received thereto from said officers, de-
partments or agents between on or about August 15,
vs. United States of America 229
1945, to and including September 25, 1948, com-
plaining of the defendant or directing or requesting
the following things: the arrest of the defendant on
or about September 5, 1945, at Yokohama, Japan,
by agents of the U. 8.; her detention there until
September 6, 1945, and her then release therefrom;
the arrest of the defendant on or about October 16,
1945, at Tokyo, Japan, by agents of the U. S. and
her imprisonment by them at the Yokohama Prison
in Yokohama, Japan, until November 16, 1945, and
thereafter from then to October 25, 1946, at the
Sugamo Prison in Tokyo, Japan, and her then re-
lease therefrom; her arrest on or about August 26,
1948, at Tokyo, Japan, by agents of the U. S., and
imprisonment in Sugamo Prison, Tokyo, Japan, and
her transportation therefrom to the S. 8. General
F. R. Hodges, a U. S. transport vessel, and thence
to San Francisco, California, by said vessel which
here arrived on September 25, 1948; or relating to
any of said things.
2. ‘The original or copies of letters, radiograms,
wireless messages and other written memoranda, 1n-
cluding requests, orders, instructions or process of
the Supreme Commander, Allied Powers (SCAP),
Tokyo, Japan, addressed or sent to Tom C. Clark,
Attorney General, or the Department of Justice,
Washington, D. C., or to the agents of said Depart-
ment, the Commander of the U. 8S. Eighth Army in
Japan, the Counter Intelligence Corps, U. S. Army,
in Japan, the Commanding Officer of Sugamo
230 Iva Ikuko Togurit D’ Aquino
Prison in Tokyo, Japan, the Commanding Officer
of Yokohama Prison in Yokohama, Japan, the Sec-
retary of State or Department of State in Wash-
ington, D. C., and to its consular or other agent or
agents in Japan, and replies received thereto from
said officers, departments or agents, between on or
about August 15, 1945, to and including September
25, 1948, authorizing, directing or requesting the
following things: the arrest of the defendant on or
about September 5, 1945, at Yokohama, Japan, by
agents of the U. S.; her detention there until Sep-
tember 6, 1945, and her then release therefrom; the
arrest of the defendant on or about October 16, 1945,
at Tokyo, Japan, by agents of the U. S. and her
imprisonment by them at the Yokohama Prison in
Yokohama, Japan, until November 16, 1945, and
thereafter from then to October 25, 1946, at the
Sugamo Prison in Tokyo, Japan, and her then re-
lease therefrom; her arrest on or about August 26,
1948, at Tokyo, Japan, by agents of the U. S., and
imprisonment in Sugamo Prison, Tokyo, Japan, and
her transportation therefrom to the S. 8. General
FF. R. Hodges, a U. S. transport vessel, and thence -
to San Francisco, California, by said vessel which
here arrived on September 25, 1948; or relating to
anv of said things.
3. The original or copies of letters, radiograms,
wireless messages and other written memoranda, in-
cluding requests, orders, instructions and process of
the Secretary of State, the Department of State, and
also of its consular or other agent or agents in
Japan, addressed or sent to Tom C. Clark, as the
vs. Umted States of America 231
Attorney General, or to the Department of Justice
or agents of said Department, the Supreme Com-
mander, Allied Powers (SCAP), Tokyo, Japan, the
Commander of the U. 8. Eighth Army, in Japan,
the Counter Intelligence Corps, U. 8. Army, Japan,
the Commanding Officer of Sugamo Prison in
Tokyo, Japan, and the replies received thereto from
said officers, departments or agents, between on or
about August 15, 1945, to and including September
20, 1948, authorizing, directing or requesting the
following things: the arrest of the defendant on or
about September 5, 1945, at Yokohama, Japan, by
agents of the U. 8.; her detention there until Sep-
tember 6, 1945, and her then release therefrom; the
arrest of the defendant on or about October 16, 1945,
at Tokyo, Japan, by agents of the U. S. and her
imprisonment by them at the Yokohama Prison in
Yokohama, Japan, until November 16, 1945, and
thereafter from then to October 25, 1946, at the
Sugamo Prison in Tokyo, Japan, and her then re-
lease therefrom; her arrest on or about August 26,
1948, at Tokyo, Japan, by agents of the U. 8., and
imprisonment in Sugamo Prison, Tokyo, Japan, and
her transportation therefrom to the S. S. General
F. R. Hodges, a U. S. transport vessel, and thence
to San Francisco, California, by said vessel which
here arrived on September 25, 1948; or relating to
any of said things.
4. Any and all written charges, accusations or
complaints made, brought or filed by authority of
232 Iva Ikuko Toguri D’ Aquino
the plaintiff, the United States, including the United
States Army, SCAP, the U. S. Eighth Army, the
Counter Intelligence Corps of the U. 8. Army in
Japan, the Attorney General, the Department of
Justice, and the State Department in Japan, against
the defendant between August 13, 1948, and Sep-
tember 25, 1948, together with any and all records
made or kept of any and all examinations, hearings
or trials of the defendant had thereon and the dis-
position made thereof.
5. The original records, or copies thereof, of the
Sugamo Prison and Yokohama Prison relating to
the defendant, and, in particular, those records,
letters, messages, files, letters, instructions and proc-
ess relating to the arrests, incarcerations and re-
leases of the defendant from imprisonment as men-
tioned in paragraphs 1, 2, 3, and 4 hereinabove.
6. Any and all radio script, or copies thereof,
the plaintiff asserts or claims was prepared, com-
posed, written, typed, used, read, announced or
broadcast by radio by the defendant between about
November 1, 1943, and on or about August 18, 1945,
at or from Radio Tokyo or Radio Station JOAK
in Japan.
7. Any and all phonographic recordings the
plaintiff asserts or claims to be made of the defend-
ant’s voice between about November 1, 1943, to on
or about August 13, 1945, and since then.
8. Any and all musical records or recordings the
plaintiff asserts or claims the defendant played or
vs. Umted States of America 233
broadcast or caused to be played or broadeast be-
tween about November 1, 19438, and August 13, 1945,
from Radio Tokyo or Radio Station JOAK in
Japan.
9. Any and all statements in writing made, exe-
cuted, signed or initialed by the defendant for the
plaintiff or for any agent or agents of the plaintiff
or for any other person or persons or asserted or
claimed by the plaintiff to have been made by the
defendant between Aug. 15, 1945, and Sept. 25, 1948,
relating to her life, employment and conduct in
Japan from about July 1, 1941, to about September
25, 1948.
10. Any and all oral statements the plaintiff
asserts or claims was made by the defendant to the
plaintiff or to any agent or agents of the plaintiff
er any other person or persons between August 15,
1945, and Sept. 25, 1948, and transcribed or reduced
to writing relating to her life, employment and
conduct in Japan from about July 1, 1941, to about
Sept. 25, 1948.
11. Any and all other records of the plaintiff or
U. 8. Government departments or agents bearing
on this case.
The above-mentioned books, papers, documents
and objects are identical with those designated in
the subpoena heretofore issued and served upon
eounsel for the plaintiff.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
[Endorsed]: Filed June 16, 1949.
234 Iva Ikuko Togurt D’ Aquino
[Title of District Court and Cause. ]
NOTICE
To Frank J. Hennessy, U. S. Attorney, and Tom
DeWolfe, Special Assistant to the Attorney
General, Attorneys for plaintiff:
You and each of you will please take notice that
on Monday the 20th day of June, 1949, in the Court-
room of the above-entitled Court the defendant will
bring on for hearing her motion for production of
documentary evidence, her motion for supplemental
order authorizing additional subsistence expenses to
be paid defendant’s counsel for attending examina-
tion of witnesses and motion for list of witnesses
and veniremen.
/s/ WAYNE M. COLLINS,
Attorney for Defendant.
Receipt of copy acknowledged.
[Endorsed]: Filed June 16, 1949.
vs. United States of America 235
[Title of District Court and Cause. ]
ORDER GRANTING MOTION FOR SUPPLE-
MENTAL ORDER AUTHORIZING ADDI-
TIONAL SUBSISTENCE EXPENSES TO
BE PAID BY THE GOVERNMENT TO DE-
FENDANT’S COUNSEL FOR ATTENDING.
EXAMINATIONS OF WITNESSES
The defendant’s motion for supplemental order
authorizing additional subsistence expenses to be
paid defendant’s counsel for attending examinations
of witnesses abroad coming on regularly to be heard
this 20th day of June, 1949, Wayne M. Collins, Esq.,
appearing for the defendant, and Frank J. Hen-
nessy, U. 8. Attorney, and Tom DeWolfe, Special
Assistant to the Attorney General, appearing for the
plaintiff, and the matter thereupon being submitted
to the Court for decision and being duly considered
by the Court, it is ordered that said motion be
granted and that the sum of Three Hundred Dollars
($300.00) be paid to defendant’s counsel, Theodore
Tamba, Esq., for the thirty (80) day subsistence
expenses in addition to that of the subsistence ex-
penses heretofore allowed by order of Court dated
March 15, 1949, for attending the examinations and
taking of depositions of defendant’s witnesses in
Japan.
Dated: June 20, 1949.
/s/ MICHAEL J. ROCHE,
U.S. District Judge.
[Endorsed]: Filed June 20, 1949.
236 Iva Ikuko Toguri D’ Aquino
District Court of the United States, Northern Dis-
trict of California, Southern Division
At A Stated Term of the District Court of the
United States for the Northern District of Cali-
fornia, Southern Division, held at the Court Room
thereof, in the City and County of San Francisco,
on Monday, the 20th day of June, in the year of
our Lord one thousand nine hundred and forty-nine.
Present: The Honorable Michael J. Roche,
District Judge.
[Title of Cause. ]
ORDER
(Order granting motion for additional ex-
penses, etc., motion to quash subpoena duces
tecum served on Mr. Hennessy, and motion for
_list of witnesses and veniremen. )
This case came on for hearing on motion to pro-
duce, motion for additional expenses, and motion for
lists. Defendant was present in custody of U. S.
Marshal. After hearing the arguments of Wayne
Collins, Esq., attorney for defendant, and Hon.
Frank J. Hennessy, U. S. Attorney, it is Ordered
that the motion for additional expenses, ete. be
granted; that the motion to quash subpoena duces
tecum served on Mr. Hennessy be granted; and that
the motion for a list of witnesses and veniremen be
granted, said list to be served at least three days
prior to the trial. Ordered case continued to June
22, 1949 for hearing on motion to produce.
vs. Umited States of America 237
[Title of District Court and Cause. ]
ORDER REQUIRING PLAINTIFF TO SUP-
PLY DEFENDANT WITH LISTS OF VE-
NIREMEN AND WITNESSES
The motion of the defendant for lists of witnesses
and veniremen, filed herein on June 16, 1949, having
come on regularly for hearing the 20th day of June,
1949, Wayne M. Collins, Esq., appearing for the
defendant, and Frank J. Hennessy, U. S. Attorney,
appearing for the plaintiff, and the motion being
duly argued and submitted to the Court for decision.
It Is Ordered that the plaintiff or the plaintiff’s
counsel supply to the defendant or defendant’s
counsel at least three days before the commence-
ment of the trial herein a list of the veniremen and
a list of the witnesses to be produced by the plaintiff
on the trial for proving the indictment, stating the
place of abode of each venireman and witness.
Dated: June 22nd, 1949.
/3s/ MICHAEL J. ROCHE,
U.S. District Judge.
Receipt of copy attached.
[Endorsed]: Filed June 22, 1949.
238 Iva Ikuko Toguri D’ Aquino
[Title of District Court and Cause. ]
SUBPOENA TO TESTIFY
To: Tom DeWolfe, Special Assistant to the At-
torney General, and Frank J. Hennessy, U. S.
Attorney.
You are hereby commanded to appear in the Dis-
trict Court of the United States for the Northern
District of California at Room 338, Post Office
Building in the city of San Francisco, California,
on the 5th day of July, 1949, at 10:00 o’clock a.m.
to testify in the case of the United States v. Iva
Ikuko Toguri d’Aquino.
And bring with you the following:
1. The original, or copies of, letters, radiograms,
wireless messages and other written memoranda,
including requests, orders, instructions or process
of the Attorney General, the Department of Justice
or its agents, addressed or sent to the Supreme Com-
mander, Allied Powers (SCAP), Tokyo, Japan, the
Commander of the U. 8S. Highth Army in Japan, the
Counter Intelligence Corps, U. 8. Army, in Japan,
the Commanding Officer of Sugamo Prison in
Tokyo, Japan, the Commanding Officer of Yoko-
hama Prison in Yokohama, Japan, the Secretary of
State and Department of State in Washington, and
to its consular or other agent or agents in Japan,
and replies received thereto from said officers, de-
partments or agents between on or about August 15,
us. United States of America 239
1945, to and including September 25, 1948, com-
plaining of the defendant or directing or requesting
the following things: the arrest of the defendant on
or about September 5, 1945, at Yokohama, Japan,
by agents of the U. S.; her detention there until
September 6, 1945, and her then release therefrom ;
the arrest of the defendant on or about October 16,
1945, at Tokyo, Japan, by agents of the U. S. and
her imprisonment by them at the Yokohama Prison
in Yokohama, Japan, until November 16, 1945, and
thereafter from then to October 25, 1946, at the
Sugamo Prison in Tokyo, Japan, and her then re-
lease therefrom; her arrest on or about August 26,
1948, at Tokyo, Japan, by agents of the U. 8., and
imprisonment in Sugamo Prison, Tokyo, Japan, and
her transportation therefrom to the S. S. General
F. R. Hodges, a U. 8. transport vessel, and thence
to San Francisco, California, by said vessel which
here arrived on September 25, 1948; or relating to
any of said things.
2. The original or copies of letters, radiograms,
wireless messages and other written memoranda, in-
cluding requests, orders, instructions or process of
the Supreme Commander, Allied Powers (SCAP),
Tokyo, Japan, addressed or sent to Tom C. Clark,
Attorney General, or the Department of Justice,
Washington, D. C., or to the agents of said Depart-
ment, the Commander of the U. 8. Eighth Army in
Japan, the Counter Intelligence Corps, U. 8. Army,
in Japan, the Commanding Officer of Sugamo
240 Iva Ikuko Toguri D’ Aquino
Prison in Tokyo, Japan, the Commanding Officer of
Yokohama Prison in Yokohama, Japan, the Secre-
tary of State or Department of State in Washing-
ton, D. C., and to its consular or other agent or
agents in Japan, and replies received thereto from
said officers, departments or agents, between on or
about August 15, 1945, to and including September
25, 1948, authorizing, directing or requesting the
following things: the arrest of the defendant on or
about September 5, 1945, at Yokohama, Japan, by
agents of the U. S.; her detention there until Sep-
tember 6, 1945, and her then release therefrom; the
arrest of the defendant on or about October 16,
1945, at Tokyo, Japan, by agents of the U. 8. and
her imprisonment by them at the Yokohama Prison
in Yokohama, Japan, until November 16, 1945, and
thereafter from then to October 25, 1946, at the
Sugamo Prison in Tokyo, Japan, and her then re-
lease therefrom; her arrest on or about August 26,
1948, at Tokyo, Japan, by agents of the U. 8., and
imprisonment in Sugamo Prison, Tokyo, Japan, and
her transportation therefrom to the 8S. 8. General
FI’. R. Hodges, a U. S. transport vessel, and thence
to San Francisco, California, by said vessel which
here arrived on September 25, 1948; or relating to
any of said things.
3. The original or copies of letters, radiograms,
wireless messages and other written memoranda,
including requests, orders, instructions and process
of the Secretary of State, the Department of State,
and also of its consular or other agent or agents in
vs. United States of America 241
Japan, addressed or sent to Tom C. Clark, as the
Attorney General, or to the Department of Justice
or agents of said Department, the Supreme Com-
mander, Allied Powers (SCAP), Tokyo, Japan, the
Commander of the U. 8. Eighth Army, in Japan,
the Counter Intelligence Corps, U. 8. Army, Japan,
the Commanding Officer of Sugamo Prison in
Tokyo, Japan, and the replies received thereto from
said officers, departments or agents, between on or
about August 15, 1945, to and ineluding September
25, 1948, authorizing, directing or requesting the fol-
lowing things:—the arrest of the defendant on or
about September 5, 1945, at Yokohama, Japan, by
agents of the U. S.; her detention there until Sep-
tember 6, 1945, and her then release therefrom; the
arrest of the defendant on or about October 16,
1945, at Tokyo, Japan, by agents of the U. S. and
her imprisonment by them at the Yokohama Prison
in Yokohama, Japan, until November 16, 1945, and
thereafter from then to October 25, 1946, at the
Sugamo Prison in Tokyo, Japan, and her then re-
lease therefrom; her arrest on or about August 26,
1948, at Tokyo, Japan, by agents of the U. S., and
imprisonment in Sugamo Prison, Tokyo, Japan,
and her transportation therefrom to the S. 8S. Gen-
eral F. R. Hodges, a U.S. transport vessel, and
thence to San Francisco, California, by said vessel
which here arrived on September 25, 1948; or re-
lating to any of said things.
4. Any and all written charges, accusations or
complaints made, brought or filed by authority of
242. Iva Ikuko Toguri D’ Aquino
the plaintiff, the United States, including the
United States Army, SCAP, the U. 8. Highth
Army, the Counter Intelligence Corps of the U. S.
Army in Japan, the Attorney General, the Depart-
ment of Justice, and the State Department in
Japan, against the defendant between August 13,
1943, and September 25, 1948, together with any
and all records made or kept of any and all exam-
inations, hearings or trials of the defendant had
thereon and the disposition made thereof.
5. The original records, or copies thereof, of the
Sugamo Prison and Yokohama Prison relating to
the defendant which heretofore were delivered or
sent to you, the Attorney General or the Depart-
ment of Justice by the authorized custodian thereof
from Japan subsequent to the time in April or
May of 1949, when access thereto and examination
thereof were denied to Theodore Tamba, Esq., who
was acting as counsel for and on behalf of the
defendant, and when the taking of the deposition
thereon of such custodian by said Theodore Tamba,
Esq., relating thereto was refused by such cus-
todian, and, in particular, those records, letters,
messages, files, letters, instructions and process re-
lating to the arrests, incarcerations and releases of
the defendant from imprisonment as mentioned in
paragraphs 1, 2, 3 and 4 hereinabove.
6. Any and all radio script, or copies thereof,
the plaintiff asserts or claims was prepared, com-
posed, written, typed, used, read, announced or
vs. United States of America 243
broadcast by radio by the defendant between about
November 1, 1948, and on or about August 13, 1945,
at or from Radio Tokyo or Radio Station JOAK
in Japan.
7. Any and all phonographic recordings the
plaintiff asserts or claims to be made of the defend-
ant’s voice between about November 1, 1943, to on
or about August 13, 1945, and since then.
8. Any and all musical records or recordings the
plaintiff asserts or claims the defendant played or
broadcast or caused to be played or broadcast be-
tween about November 1, 1943, and August 13, 1945,
from Radio Tokyo or Radio Station JOAK in
Japan.
9. Any and all statements in writing made, exe-
cuted, signed or initialed by the defendant for the
plaintiff or for any agent or agents of the plaintiff
or for any other person or persons or asserted or
claimed by the plaintiff to have been made by the
defendant between Aug. 15, 1945, and Sept. 25,
1948, relating to her life, employment and conduct
in Japan from about July 1, 1941, to about Sep-
tember 25, 1948.
10. Any and all oral statements the plaintiff
asserts or claims was made by the defendant to the
plaintiff or to any agent or agents of the plaintiff
or any other person or persons between August 15,
1945, and Sept. 25, 1948, and transcribed or reduced
to writing relating to her life, employment and
244 Iva Ikuko Toguri D’ Aquino
conduct in Japan from about July 1, 1941, to about
Sept. 25, 1948.
11. Any and all other records of the plaintiff or
U. S. Government departments or agents bearing
on this case.
This subpoena is issued on application of the
defendant.
C. W. CALBREATH,
Clerk.
[Seal] By /s/ [Indistinguishable]
Deputy Clerk.
Returns on service of copy attached.
[Endorsed]: Filed June 22, 1949.
vs. United States of America 245
District Court of the United States, Northern
District of California, Southern Division
At a Stated Term of the District Court of the
United States for the Northern District of Cali-
fornia, Southern Division, held at the Court Room
thereof, in the City and County of San Francisco,
on Wednesday, the 22nd day of June, in the year
of our Lord one thousand nine hundred and forty-
nine.
Present: The Honorable Michael J. Roche,
District Judge.
[Title of Cause. ]
ORDER
(Minute order quashing subpoena duces
tecum issued to Mr. DeWolfe;
Minute order denying defendant’s motion to
produce. )
Case came on for hearing on motion to produce.
Defendant was present in custody of U. S. Marshal
and with her attorney, Wayne Collins, Esq. Tom
DeWolfe, Esq., Special Assistant to the Attorney
General, was present for the United States. Mr.
DeWolfe made a motion to quash subpoena duces
tecum issued to him. After hearing the arguments
of the attorneys, 1t is Ordered that the said motion
be granted; and that the defendant’s motion to
produce be denied.
246 Iva Ikuko Togurt D’ Aquino
[Title of District Court and Cause.]
Appearance
Mr. Clerk:
Enter our appearance as attorneys for the de-
fendant in the above-entitled case.
Dated at San Francisco, Cal., on Sth day of July,
1949.
/s/ WAYNE M. COLLINS,
/s/ THEODORE TAMBA,
/s/ GEORGE OLSHAUSEN.
[Endorsed]: Filed July 5, 1949.
vs. United States of America 247
District Court of the United States, Northern
District of California, Southern Division
At a Stated Term of the District Court of the
United States for the Northern District of Cali-
fornia, Southern Division, held at the Court Room
thereof, in the City and County of San Francisco,
on Friday, the 12th day of August, in the year of
our Lord one thousand nine hundred and forty-nine.
Present: The Honorable Michael J. Roche,
District Judge.
[Title of Cause. ]
ORDER
(Minute order that oral motion for judg-
ment of acquittal be continued to August 13,
1949. )
The defendant, the attorneys, and the jurors im-
panelled herein being present as heretofore, the
further trial of this case was this day resumed.
Robert Cowan, Mariano Villarin, Chas. Hall and
Richard Henschel were sworn and testified on be-
half of the United States. Mr. De Wolfe introduced
in evidence and filed U. 8S. Exhibit No. 44. The
United States then rested. Mr. Olshausen made a
motion for judgment of acquittal. It is Ordered
that this case be continued to August 13, 1949, at
©:00 am., for further trial.
248 Iva Ikuko Togurni D’ Aquino
District Court of the United States, Northern
District of California, Southern Division
At a Stated Term of the District Court of the
United States for the Northern District of Cali-
fornia, Southern Division, held at the Court Room
thereof, in the City and County of San Francisco, ©
on Saturday, the 13th day of August, in the year of
our Lord one thousand nine hundred and forty-nine.
Present: The Honorable Michael J. Roche,
District Judge.
[Title of Cause. ]
ORDER
(Minute order denying defendant’s motion
for judgment of acquittal.)
The defendant and the attorneys being present
as heretofore, the further trial of this case was this
day resumed. ‘T'he jurors were not present. The
Court proceeded to hear the arguments on the de-
fendant’s motion for a judgment of acquittal. After
hearing the arguments of Mr. Olshausen and Mr.
De Wolfe, it is Ordered that said motion be denied.
It is Ordered that this case be continued to August
15, 1949, at 10 a.m., for further trial.
vs. United States of America 249
[Title of District Court and Cause. |
MOTION FOR ORDER FOR PRODUCTION,
EXAMINATION AND INSPECTION OF
RECORDS AND SCRIPTS
Defendant, supplementing her oral motions here-
tofore made during the course of the prosecution’s
case, moves for the order of this Court requiring
the plaintiff to produce in court and to permit the
defendant to examine and inspect the following:
1. The five phonographic recordings to which
the prosecution’s witness Sam Cavanar testified to
on his direct examination, commencing on line 16
of page 2226 down to and including line 4 on page
2227 of the reporter’s transcript, Vol. XXI, of
August 3, 1949, and on line 7 of page 2227 thereof
down to and including the material on line 15
thereof on cross-examination.
2. The five phonographic recordings to which
the prosecution’s witness William Halbert Thomp-
son testified to on his direct examination, com-
mencing on line 18 of page 2250 down to and
including the material on line 9 on page 2251 of
the reporter’s transcript, Vol. X XI, of August 3,
1949, and the material mentioned on line 15 of page
2273 of said transcript down to and including the
material on line 8 of page 2274 thereof relating to
the cross-examination of said witness.
3. The five phonographic recordings of programs
of the Zero Hour program, or parts thereof, deliv-
250 Iva Ikuko Toguri D’ Aquino
ered into the possession of the plaintiff, or its agent
Fred Tillman or agents of the plaintiff in Japan
during the latter part of 1948 or during the early
part of 1949 by Ruth Hayakawa.
4. The radio scripts and the motion picture, to-
gether with its sound recording tract, insofar as the
said motion picture incorporates the said radio
scripts of the defendant to which the witness Rob-
ert Cowan testified on August 12, 1949, on his direct
examination, at pages 2810, line 16 to 24, inclusive,
page 2824, lines 17 to 25 inclusive, page 2825, lines
1 to 3, inclusive, page 2827, lines 5 to 25 inclusive
and page 2828, lines 1 to 3 inclusive on his cross-
examination, said page and line references appear-
ing in the reporter’s transcript of the trial herein
on August 12, 1949, transcript No. X XVI.
Dated: August 18, 1949.
/s/ WAYNE M. COLLINS,
/s/ GEORGH OLSHAUSEN,
/s/ THEODORE TAMBA,
Attorneys for Defendant.
Receipt of copy acknowledged.
[Endorsed]: Filed August 13, 1949.
vs. United States of America 251
District Court of the United States, Northern
District of California, Southern Division
At a Stated Term of the District Court of the
United States for the Northern District of Cali-
fornia, Southern Division, held at the Court Room
thereof, in the City and County of San Francisco,
on Monday, the 19th day of September, in the year
of our Lord one thousand nine hundred and forty-
nine.
Present: The Honorable Michael J. Roche,
District Judge.
[Title of Cause. ]
ORDER
(Minute order denying motion to strike cer-
tain testimony; to strike U. S. Exhibits Nos. 2
and 15; to dismiss Indictment; and motion for
acquittal. )
The defendant, the attorneys and the jurors im-
panelled herein being present as heretofore, the
further trial of this case was this day resumed.
Frances Roth, Rafael Velasquez, Sr., and Rafael
Velasquez, Jr., were sworn and testified on behalf
of the United States. Mr. Knapp introduced in
evidence and filed U. 8. Exhibits Nos. 63-75. The
United States rested its case in rebuttal. Both sides
rested. The attorneys for the defendant made the
following motions: to strike certain testimony; to
strike U.S. Exhibits numbered 2 and 15; to dismiss
252 Iva Ikuko Toguri D’ Aquino
the indictment; and motion for acquittal. After
hearing the arguments of the attorneys, it is
Ordered that each of said motions be denied. It
is Ordered that this case be continued to September
20, 1949, at 10 o’clock a.m. for further trial, and
the jury after being duly admonished by the Court
was excused until said time.
District Court of the United States, Northern |
District of California, Southern Division
At a Stated Term of the District Court of the
United States for the Northern District of Cali-
fornia, Southern Division, held at the Court Room
thereof, in the City and County of San Francisco,
on Monday, the 26th day of September, in the year
of our Lord one thousand nine hundred and forty-
nine.
Present: The Honorable Michael J. Roche,
District Judge.
[Title of Cause. ]
ORDER
(Minute Order re: Court’s instruction to
jury; Aileen McNamara, alternate juror, ex-
cused from further service; Marshal instructed
to provide meals and lodging for jurors and
two deputy marshals, ete.)
The defendant, the attorneys, and the jurors im-
panelled herein being present as heretofore, further
us. Uited States of America 253
trial of this case was this day resumed. After hear-
ing the instructions of the Court, the jury at 11:48
a.m. retired to deliberate upon its verdict. It is
Ordered that alternate juror Aileen McNamara be
excused from further service. It is Ordered that
the U. S. Marshal furnish meals and lodgings for
the jurors and two Deputy Marshals. At 2:41 p.m.
the jury returned into the Courtroom, requested
and received the written instructions of the Court,
by stipulation. At 2:44 p.m. the jury again retired
to deliberate upon its verdict. At 11:20 p.m. the
jury retired for the night. Ordered case continued
to September 27, 1949, for further trial.
District Court of the United States, Northern
District of California, Southern Division
At A Stated Term of the District Court of the
United States for the Northern District of Cali-
fornia, Southern Division, held at the Court Room
thereof, in the City and County of San Francisco,
on Tuesday, the 27th day of September, in the year
of our Lord one thousand nine hundred and forty-
nine.
Present: The Honorable Michael J. Roche,
District Judge.
254 Iva Ikuko Toguni D’ Aquino
[Title of Cause. ]
ORDER
(Minute order—re portions of transcript and
exhibit requested by and delivered to jury;
etc. )
The defendant, the attorneys, and the jurors im-
panelled herein being present as heretofore, the
further trial of this case was this day resumed. At
11:42 a.m. the jury returned into Court, requested
and received certain portions of the transcript. At
11:46 a.m. the Jury again retired to deliberate upon
its verdict. At 2:35 p.m. the jury returned into
Court, requested and received certain portions of
the transcript. At 2:36 p.m. the jury again retired
to deliberate upon its verdict. At 3:56 p.m. the jury
returned into Court, requested and received U. S.
Exhibit No. 15. At 3:58 p.m. the jury again retired
to deliberate upon its verdict. At 10:15 p.m. the
jury retired for the night. Ordered case continued
to September 28, 1949, for further trial.
District Court of the United States, Northern
District of California, Southern Division
At a Stated Term of the District Court of the
United States for the Northern District of Cali-
fornia, Southern Division, held at the Court Room
thereof, in the City and County of San Francisco,
vs. United States of America 255
on Thursday, the 29th day of September, in the
year of our Lord one thousand nine hundred and
forty-nine.
Present: The Honorable Michael J. Roche,
District Judge.
[Title of Cause. ]
ORDER
(Minute order—re Jury requesting and re-
celving certain volumes of testimony, and fur-
ther instructions of the Court; Jury’s verdict
and Special Findings, etc.)
The defendant, the attorneys, and the jury im-
panneled herein being present as heretofore, the
further trial of this case was this day resumed. At
11:40 a.m .the jury returned into Court, requested
and received certain volumes of testimony. At 11:48
a.m. the jury again retired to deliberate upon its
verdict. At 5:38 p.m. the jury returned into Court,
requested and received further instructions. At
30:40 p.m. the jury again retired to deliberate upon
its verdict. At 6:04 p.m. the jury returned into
Court and upon being asked if they had agreed
upon a verdict, replied in the affirmative and re-
turned the following verdict and Special Findings
which were ordered filed and recorded:
“We, the Jury, find as to the defendant at the
bar as follows: Guilty.
s/ JOHN MANN,
Horeman.’’
206 Iva Ikuko Toguri D’ Aquino
‘Special Findings by the Jury
In accordance with the instruction already given
by the Court, the jury makes the following findings:
I.
Did the jury find overt act 1., as it is laid in
the indictment, a treasonable act committed by the
defendant D’Aquino with an intent to betray the
United States? (Answer, in writing, yes or no.)
No .
JOE.
Did the jury find overt act 2., as it is laid in
the indictment, a treasonable act committed by the
defendant D’Aquino with an intent to betray the
United States? (Answer, in writing, yes or no.)
No
ITI.
Did the jury find overt act 3., as it is laid in
the indictment, a treasonable act committed by the
defendant D’Aquino with an intent to betray the
United States? (Answer, in writing, yes or no.)
No
IV.
Did the jury find overt act 4., as it is laid in
the indictment, a treasonable act committed by the
defendant D’Aquino with an intent to betray the
United States? (Answer, in writing, yes or no.)
No
Vv.
Did the jury find overt act 5., as it is laid in
the indictment, a treasonable act committed by the
vs. United States of America 257
defendant D’Aquino with an intent to betray the
United States? (Answer, in writing, yes or no.)
No
Vi.
Did the jury find overt act 6., as it is laid in
the indictment, a treasonable act committed by the
defendant D’Aquino with an intent to betray the
United States? (Answer, in writing, yes or no.)
Yes ;
Wall.
Did the jury find overt act 7., as it is laid in
the indictment, a treasonable act committed by the
defendant D’Aquino with an intent to betray the
United States? (Answer, in writing, yes or no.)
No
VIII.
Did the jury find overt act 8, as it is laid in
the indictment, a treasonable act committed by the
defendant D’Aquino with an intent to betray the
United States? (Answer, in writing, yes or no.)
No
San Francisco, California,
Sept. 29, 1949.
/s/ JOHN MANN,
Foreman.”’
The jury upon being asked if said verdict and
Special Findings were its verdict and Special Find-
ings, each juror replied that it was. The Jury was
polled. Ordered that the jury be discharged from
further consideration hereof and be excused. On
258 Iva Ikuko Togurt D’ Aquino
motion of Mr. Collins, it is ordered that this case
be continued to October 6, 1949, for judgment.
[Title of District Court and Cause. ]
SPECIAL FINDINGS BY THE JURY
In accordance with the instruction already given
by the Court, the jury makes the following findings:
: If
Did the jury find overt act 1., as it is laid in
the indictment, a treasonable act committed by the
defendant D’Aquino with an intent to betray the
United States? (Answer, in writing, yes or no.)
No
i0
Did the jury find overt act 2., as it is laid in
the indictment, a treasonable act committed by the
defendant D’Aquino with an intent to betray the
United States? (Answer, in writing, yes or no.)
No
III.
Did the jury find overt act 3., as it is laid in
the indictment, a treasonable act committed by the
defendant D’Aquino with an intent to betray the
United States? (Answer, in writing, yes or no.)
No
ive
Did the jury find overt act 4., as it is laid in
the indictment, a treasonable act committed by the
vs. United States of America 209
defendant D’Aquino with an intent to betray the
United States? (Answer, in writing, yes or no.)
No
V.
Did the jury find overt act 5., as it is laid in
the indictment, a treasonable act committed by the
defendant D’Aquino with an intent to betray the
United States? (Answer, in writing, yes or no.)
No
vi.
Did the jury find overt act 6., as it is laid in
the indictment, a treasonable act committed by the
defendant D’Aquino with an intent to betray the
United States? (Answer, in writing, yes or no.)
Yes
VIL.
Did the jury find overt act 7., as it is laid in
the indictment, a treasonable act committed by the
defendant D’Aquino with an intent to betray the
United States? (Answer, in writing, yes or no.)
No
VIIL.
Did the jury find overt act 8., as it is laid in
the indictment, a treasonable act committed by the
defendant D’Aquino with an intent to betray the
United States? (Answer, in writing, yes or no.)
No
San Francisco, California, Sept. 29, 1949.
/s/ JOHN MANN,
Foreman.
[Endorsed]: Filed September 29, 1949.
260 Iva Ikuko Togurt D’ Aquino
In the Southern Division of the United States
District Court for the Northern District of
California, First Division
No. 31712-R
THE UNITED STATES OF AMERICA
VS.
IVA IKUKO TOGURI D’AQUINO
VERDICT
We, the Jury, find as to the defendant at the bar
as follows:
Guilty.
/s/ JOHN MANN,
Foreman.
[Endorsed]: Filed September 29, 1949.
vs. United States of America 261
[Title of District Court and Cause. ]
MOTION FOR ARREST OF JUDGMENT
UNDER RULE 34
Defendant moves the court for an order arresting
judgment under Rule 34 of the Rules of Criminal
Procedure for the District Courts of the United.
States upon each of the following grounds:
1. The indictment does not state a public offense.
2. The court is without jurisdiction of the of-
fense charged upon the ground that the Northern
District of California is not the District to which
defendant was first brought; on the contrary, the
first territory under American jurisdiction to which
defendant was first brought was the Island of
Okinawa.
3. The court has no jurisdiction of the offense
upon the ground that the indictment was based
upon perjured and suborned testimony.
4. The court has no jurisdiction over the person
of the defendant.
/s/ WAYNE M. COLLINS,
/s/ GEORGE OLSHAUSEN,
/s/ THEODORE TAMBA,
Receipt of copy attached.
[Endorsed]: Filed October 3, 1949.
262 Iva Ikuko Toguri D’ Aquino
[Title of District Court and Cause. ]
MOTION FOR ACQUITTAL OR NEW TRIAL
UNDER RULE 29 (b)
Defendant hereby moves the court to set aside
the verdict of guilty heretofore entered and to enter
a judgment of acquittal or alternatively to grant a
new trial under Rule 29(b) of the Rules of Criminal
Procedure for the District Courts of the United
States. Said motion will be made upon the ground
that the evidence is insufficient to sustain the ver-
dict of guilty and in particular is deficient upon —
each of the following grounds, among others:
1. Defendant’s imprisonment in Japan upon
suspicion of treason from September, 1945, until
October, 1946, and her release on the latter date, if
construed as arrest and release upon the charges
contained in the indictment, show that the question
of defendant’s guilt or innocence has previously
been passed upon and is now res judicata or that
defendant has been once put in jeopardy. If con-
strued as not based upon charges, said imprison-
ment for more than one year without charges after
an arrest on suspicion of treason constituted a de-
nial of a speedy trial in violation of Amendment VI
to the United States Constitution.
2. ‘The said imprisonment of the defendant for
more than one vear in Japan on suspicion of treason
but without filing of charges coupled with the loss
of material evidence as testified to by witness Rob-
vs. United States of America 263
ert Cowan constituted a denial of the right of a
speedy trial in violation of Amendment VI to the
U. S. Constitution.
3d. Prosecution of defendant upon partial evi-
dence after known loss of evidence by agents of the
government as testified to by witness Robert Cowan
constitutes denial of due process of law in violation
of Amendment V to the U. S. Constitution.
4. Playing of the recordings contained in Ex-
hibits 16 to 21 with earphones only for a judge,
jury, defendant, counsel and members of the press
but not for the public spectators so that such play-
ing was inaudible to the public constituted denial
of a public trial to the defendant in violation of
Amendment VI to the U. 8S. Constitution.
). Withholding by the government of the re-
ports of witnesses Frederick G. Tillman and John
Eldon Dunn of their interviews with Norman
Reyes after the said witnesses have given direct
testimony on this subject on rebuttal when such
report was otherwise properly within the scope of
the cross-examination of said witnesses constitutes
a denial of due process of law in violation of
Amendment V to the U. 8S. Constitution.
6. The wneontradicted evidence from the wit-
nesses of both prosecution and defense that the de-
fendant brought food, tobacco and medicines to the
Allied prisoners of war creates a reasonable doubt
264 Iva Ikuko Toguri D’ Aquino
upon the issue of intent which must be declared by
the court.
/s/ WAYNE M. COLLINS,
/s/ GEORGE OLSHAUSEN, °
/s/ THEODORE TAMBA,
Points and Authorities:
U. S. v. McWilliams, 163 Fed. (2a) 695.
Curley v. U. 8., 160 Fed. (2d) 229.
Receipt of copy attached.
[Endorsed]: Filed October 3, 1949.
[Title of District Court and Cause. ]
MOTION FOR NEW TRIAL
UNDER RULE 33
Defendant moves the court to set aside the ver-
dict of guilty heretofore entered and to grant a new
trial under Rule 33 of the Rules of Criminal Pro-
cedure for the District Courts of the United States
upon each of the following grounds: —
A. Errors of law in rulings on evidence excepted
to by defendant.
B. Errors of law in the giving and refusal of
instructions excepted to by defendant.
C. Misconduct of the prosecuting attorney ex-
cepted to by defendant.
vs. Umted States of America 265
Said grounds will include but will not be limited
to the following:
1. The court erred in admitting Exhibit 24.
2. The court erred in admitting Exhibits 2
and 15.
3. The court erred in admitting fragmentary
testimony upon the issue of intent which was of-
fered by the Government 1n a way so as to make
it impossible for defendant to show the context. In
particular, the court erred in admitting Exhibits 16
to 21, 25 and the testimony of each of the following
witnesses :
Gilbert V. Velasquez
Ted Sherdeman
Jules I. Sutter
Marshall Hoot
Sam Cavanar
William Halbert Thompson
David I. Gilmore
Robert Cowan
Charles F. Hall
Richard Henschel
Hishashi Moriyama
George Hideo Mitsushio (‘‘cold water sure tastes
good,’’ etc.)
Shinjiro Igarashi
Motomu Nii
Mary Higuchi (second appearance)
Mariano 8. Villarin
266 Iva Ikuko Toguri D’ Aquino
4. The giving of Instruction No. 22 telling the
jury as a matter of law that Satoshi Nakamura was
a witness to Overt Act 6.
5, Misstatement of the record in the argument
of the prosecuting attorney in stating that Clark
Lee testified to an alleged admission with respect to
Overt Act No. 6.
6. Error in permitting cross-examination of the
defendant relative to the truth or falsity of other
witnesses.
7. Exclusion of evidence of duress upon persons
other than defendant and of evidence of conse-
quence of disobedience of Army orders.
8. Errors in permitting cross-examination of
defendant with respect to Overt Act 8 on which
defendant had not testified which was used as the
basis for impeaching evidence and later used in the
argument of the prosecution to impeach defendant’s
entire testimony.
9. Misconduct of the prosecutor in his argument
to the jury in misstating testimony of F. Harris
Sugiyama.
10. Misconduct of the prosecuting attorney in
his argument to the jury in using Exhibit 52 as
affirmative evidence rather than merely going to
the impeachment of the witness, Norman Reyes,
and failure of the court to give a limiting instruc-
tion when requested to do so at the time of the
argument.
vs. United States of America 267
11. Exclusion of evidence as to the nature of
the program broadcast by Myrtle Liston from
Manila from the depositions of the witness Ken
Murayama.
12. Exclusion of evidence tendered by the de-
fendant as to the nature of broadcasts at hours
other than 6:00 to 7:00 p.m., Tokyo time, after the
prosecution had been permitted to show the con-
tents of alleged broadeasts ranging on Tokyo time
from 3:00 p.m. until midnight.
13. Repeated refusal by the court to permit de-
fendant to make offers of proof after objections
sustained to questions put to defendant’s witnesses
on direct examination.
14. Error in permitting questions calling for
conclusions in the cross-examination of Norman
Reyes.
15. Error in permitting questions calling for
conclusions in the eross-examination of the defend-
ant.
16. Exclusion of defendant’s exhibit number BU
for identification making the Geneva Convention
applicable during World War II as between the
United States and Japan both to prisoners of war
and to interned civilians.
17. Error in refusing defendant’s requested in-
structions relating to the Geneva Convention.
18. Exelusion of defendant’s exhibit for identi-
268 Iva Ikuko Toguri D’ Aquino
fication BQ and BR, (Harry Brundidge’s travel
orders and passport).
19. Exclusion of those parts of the deposition
of the witness Toshi Katsu Kodaira relating to the
activities of Harry Brundidge in bribing or at-
tempting to bribe witnesses against the defendant.
20. Exclusion of defendant’s exhibit BT for
identification (government subpoenas).
21. Exclusion of the testimony of the witness
Kamini Kant Gupta to the effect that Army authori-
ties considered the Zero Hour program a morale
building program for the American troops.
22. Exclusion of defendant’s exhibit BV for
identification (Navy citation).
23. Refusal of each of the following instructions
requested by defendant: 30A, 38, 39, 48, 49, 50, 65,
70, 71, 74, 75, 76, 79, 84, 85, 88, 92 to 104, 106 to
109, 110, 111, 112 to 188, 140, 189, 155, 156, 157, 161
to 169.
24. The giving of each of the following instruc-
tions (court’s numbering) on the grounds hereto-
fore specified in exceptions to the instructions: 8,
19, 25, 27, 38, 44, 45, 47, 50, 57.
25, Misconduct of the. prosecuting attorney in
arguing to the jury that this case should be a warn-
ing to others and that there may be other prosecu-
tions.
us. United States of America 269
26. Misconduct of the prosecuting attorney in
sneering, bullying cross-examination, misstating the
record to witnesses.
/s/ WAYNE M. COLLINS,
/s/ GEORGE OLSHAUSEN,
/s/ THEODORE TAMBA,
Receipt of copy attached.
[Endorsed]: Filed October 3, 1949.
[Title of District Court and Cause. ]
POINTS AND AUTHORITIES IN SUPPORT
OF MOTION FOR NEW TRIAL UNDER
RULE 33
The following points are numbered to correspond
with the numbers of the grounds for the motion:
il,
Exhibit N shows that at the time Exhibit 24 was
taken, defendant had been in custody from Sep-
tember, 1945, to April, 1946; that she was released
by the Army and turned over to agent Frederick
G. Tillman for the purposes of interrogation.’ A
statement taken while defendant is held for the
purposes of interrogation after only six days of
confinement is inadmissible. Upshaw v. U. S., 335
WS. 410, 98 L. Ed. Adv. Ops. 129 (reversed for
that error alone).
270 Iva Ikuko Togurt D’ Aquino
4,
Instruction No. 22 told the jury categorically that
Nakamura was a witness to Overt Act No. 6, instead
of leaving it to the jury to decide whether or not
he was testifying to the same incident as that de-
scribed by Oki and Mitsushio.
Gardner v. Babcock, 70 U. 8. 240, 18 L. Ed.
ol ao. |
“The court could not tell the jury that any legal
results followed from the evidence which only
tended to prove the issue to be tried.’’ [Emphasis
added. |
It was therefore error to withdraw the question
from the jury whether Nakamura was testifying to
the same or a different incident. |
~
5.
Overt Act No. 6 concerned the battle of Leyte
Gulf (Oki [X—680-81, Mitsushio XI—971, 974).
Clark Lee testified about a fighter sweep off For-
mosa (VII—485, VITI—572). His is not testimony
‘‘to the same overt act.’’ In the oral argument, how-
ever, the U. S. attorney named Clark Lee as a cor-
roborating witness to Overt Act 6 (the argument
has not yet been transcribed) clearly misstating the
record. Exception was taken (LI V—5940)—but the
same argument was repeated later. The jury then
requested leave to ‘‘examine ... the transcripts of
the testimony of the following relative to Overt
Acts 5 and 6: Clark Lee, Oki, Mistushio’’? (LIV—
6001) showing they had been influenced by the
prosecutor’s misstatement of the record. They re-
vs. United States of America 271
ported themselves unable to agree but ultimately
convicted on Overt Act 6 alone. Statements of the
prosecution outside or contrary to the record are in
themselves reversible error. Taliaferro v. U.S., 47
Fed. (2d) 699 (CCAQ), followed in Minker v. U. S.,
85 Fed. (2d) 425, 426-7 (CCA 3). See also Berger
mw. ., 299 U. Ss. 78, 84, 79 L. Ed., 1814, 1319
(Misstatement of evidence in questions).
6.
The defendant was repeatedly asked to character-
ize the testimony of other witnesses as ‘‘accurate,”’’
‘“‘true,’’ ‘‘false’’ or ‘‘in error’? XLVII—6249,
9258-9, 5301-2, XLIX—5405-6, 5428 (in effect),
0436-7, (Overt Act 6).
At the following places the characterization of
another witness’s testimony was insinuated:
XLVITI—5368-9, 5371-2, 5375-7, 5381.
X LIX—5396-7, 5403-4, 5407, 5451-2, 5455-6, 5458-
67, 5474-5, 5477, 5490-91.
Such cross-examination is improper. State v.
Schleifer, 102 Conn. 708, 130 Atl. 184, 191; State
v. Bradley, 184 Conn. 102, 55 Atl. (2d) 114, 120;
Williams v. State, 17 SW (2d) 56, 58, (Tex. App.) ;
Memple v. Duran, 121 SW 253, 255 (Tex. App.).
See also McDowell v. U. S., 74 Fed. 403, 407 (im-
proper to cross-examine on another person’s state-
ment). It may constitute prejudicial error (State
v. Schleifer, 130 Atl., 184, 191 supra). In the pres-
ent case it was undoubtedly prejudicial because of
its frequent repetition and because it was used spe-
272 Iva Ikuko Toguri D’ Aquino
cifically respecting Overt Act 6 (XLIV—5436-7).
Where objections to a line of questions are repeat-
edly overruled, it is not necessary to object to every
question. Wilson v. U.S., 4 Fed. (2d) 888, 889. At
XLVIII—5377 the court stated that it had repeat-
edly overruled objections to these questions.
8.
Defendant gave no direct testimony on Overt Act
No. 8. Nevertheless she was cross-examined upon
it (XLIX—5440-5446). Her answers were used as
basis for impeachment by the witness Roth and
Exhibit 63 (LIJ—5852). On argument this evidence
was then used to impeach defendant’s entire testi-
mony. A defendant testifying to only one part of
a charge, cannot be cross-examined on another part.
Tucker v. U. S., 5 Fed. (2d) 818, 822, 824. Defend-
ant having given no direct testimony on Overt Act
8, could not be cross-examined regarding it. Since
the sequel of the cross-examination was used in -
argument to impeach defendant’s entire testimony,
the error is prejudicial despite the acquittal on
Overt Act 8.
9.
The testimony of Sugiyama was misstated to
change its sense. Exception taken LIV—5490, mis-
conduct within the principle of Taliaferro v. U. S.,
47 Fed. (2d) 699, supra; Berger v. U. S., 295 U.S.
78, supra.
10.
Exhibit 52 was limited to impeachment of the
credibility of witness Reyes (X XX III—8779). On
us. United States of America 273
the oral argument this exhibit was repeatedly used
as proving facts in the case. We twice requested
instructions that it could not be used that way
(LI V—5939, 5941). In neither instance was the re-
quested instruction given. Misconduct falls within
principle of Taliaferro v. U. S. and Berger v. U.S.
11-12.
The prosecution offered evidence of broadcasts
ranging on Tokyo time from 3:00 p.m. (Hoot X X—
2136-7, 2142—Gilbert Islands 6:00-7:00 p.m.) to
midnight (Herschel XXVI—2960, 2988—Leyte,
9:00-11:00 p.m.). See in this connection defend-
ant’s Exhibit T, world time map.
The defense, however, was limited to rebuttal
testimony covering only the hour 6:00-7:00 p.m.,
Tokyo time. See parts re Myrtle Liston, excluded
from Ken Murayama’s deposition, (XLIJTI—4727-
8) and the following: Schenk XXX VI—4060-61;
Matsui X XX VI—4126-30, 4143-4; Cox XXX VII—
4264-5; Welker XXX VIII—4887-98; Hagedorn
XXX VITI—4412-4424, 43837 (defendant’s Exhibit
Z for identification); Gallagher XX XIX—4376-7,
4380-85.
ites
An offer of proof must be made after objection
sustained to a question on direct examination. See
1 Widmore on Evidence (8rd ed.) sec. 20, pp. 361
ff., Rules Crim. Proc. 26, adopting the common law;
also Rules Civ. Proc. 43 (¢). Defendant proposed
making offers of proof in absence of jury, XX XVII
—{291-2. Opportunity to make offers of proof was
274 Iva Ikuko Toguri D’ Aquino
denied at the following places: XXX V—3957-8
(Reyes), XXX VITI—4293-4303; (Kalbfleisch)
XX XIX—4341-2 (Stanley). Where the defendant
is thus prevented from completing a record to show
prejudice, it is reversible error. Compare People
v. Sarrazawski, 27 Cal. (2d) 7, 161 Pace. (2d) 934;
People v. Stevanson, 103 Cal. App. 82, 284 Pae. 487.
20.
Exception taken LIV—5939, 5941. Turk v. U.S.,
20 Fed. (2d) 129, holds similar argument reversible
error even after instruction to disregard.
26.
In ecross-examination of defendant: XLVIII—
5256-7 (distorting testimony of government witness
Kuroishi, XX I]—2280-85) ; XLVITI—5385; XLIX
—5394-5, 5401 (attempting to make defendant deny
facts previously testified to by government witness
Tsuneishi, IV—251, VI—412); XLIX—5458-9
(misstatement of Cousens’ testimony XX X—
3432-3) ; L—5540-44 (attempting to make defendant
deny facts already in evidence as Government Ex-
hibit 9. This line of examination begins with the
sneer ‘You talk, Mrs. d’Aquino, about filing appli-
cations for re-establishment of your American citi-
zenship’’—L—5540) ; XLVII—5310 (attempting to
make defendant deny facts previously testified to
by government witness T'suneishi, V—321).
vs. United States of America 2715:
This type of misconduct is covered by Berger v.
i. S., 295, U. S. 78, 84. .
Respectfully submitted,
/s/ WAYNE M. COLLINS,
/s/ GEORGE OLSHAUSEN,
/s/ THEODORE TAMBA.
Receipt of copy attached.
[Endorsed]: Filed October 3, 1949.
[Title of District Court and Cause. ]
SUPPLEMENTAL GROUND IN SUPPORT
OF MOTION HERETOFORE FILED FOR
ACQUITTAL OR NEW TRIAL UNDER
RULE 29 (b)
7. The prosecution of defendant while institut-
ing no prosecution against government witnesses
Mitsushio and Moriyama who claimed to have be-
come Japanese citizens in 1942 when it was impos-
sible to do so and who according to their own
testimony participated on the same program as
defendant was a denial of equal protection guar-
anteed by Amendment V to the United States Con-
stitution and elaborated in Yieck Wo vs. Hopkins,
ms U.S. 356.
/s/ WAYNE M. COLLINS,
/s/ GEORGE OLSHAUSEN,
/s/ THEODORE TAMBA.
Receipt of copy attached.
[indorsed]: Filed October 5, 1949.
276 Iva Ikuko Togurit D’ Aquino
[Title of District Court and Cause. ]
SUPPLEMENTAL AUTHORITIES ON
MOTION FOR NEW TRIAL UNDER RULE 33
1. Bram v. U. S., 168 U. 8. 532, 541—statement
of accused made to officers is to be treated as con-
fession regardless or whether it 1s partly exculpa-
tory.
Followed in Ashcraft v. Tenn., 327 U.S. 274, 278,
90 L. Ed. 667, 670.
2. Pierce v. U.S., 86 Fed. (2d) 949, 953—speak-
ing of prejudicial suggestions by prosecutor ‘‘that
it was intended to prejudice the jury is sufficient
ground for a conclusion that in fact it did so.’’
(Judgment reversed despite trial court’s instruc-
tion to disregard. ) :
Beck v. U. 8., 33 Fed. (2d), 107, 114—prosecu-
tor’s questions leaving impressions ‘‘not intended
by the witness.”’
U.S. v. Nettl, 121 Fed. (2d), 927, 930—questions
assuming the existence of damaging facts; alleged
good motive of prosecutor immaterial.
3. Exhibit 63 was not offered to rebut claim of
no propaganda on program (as stated by counsel
for prosecution on oral argument on this motion) ;
the exhibit offered for that purpose was No. 175
(Vol LIT, p. 5859).
4. Rule 43 (c) of Civil Procedure does not give
the judge discretion to reject an offer of proof; it
vs. United States of America 277
gives him discretion only (a) to require the offer
to be made out of the presence of the jury, or (b)
to add to the offer.
/s/ WAYNE M. COLLINS,
/s/ GEORGE OLSHAUSEN,
/3/ THEODORE TAMBA.
Receipt of copy attached.
[Endorsed]: Filed October 6, 1949.
[Title of District Court and Cause. ]
MEMORANDUM ON BEHALF OF UNITED
STATES IN OPPOSITION TO DEFEND-
ANT’S MOTIONS FOR A NEW TRIAL,
JUDGMENT OF ACQUITTAL, AND IN
ARREST OF JUDGMENT.
Motion In Arrest Of Judgment
Matter alleged as ground in arrest of judgment:
must be such as would have been sufficient on motion
to dismiss. Hillegas v. U. 8., 183 F. 199, cert. den.
mi U.S. 585, 55 L. ed. 347; U.S. v. Maxey, 200 F.
997. The motion must be based on matters appear-
ing in the record which does not include the evi-
dence or the charge. Horwitz v. U.S., 5 F. 2d 129;
Demolli v. U. S., 144 F. 363; Loewenthal v. U. S.,
274 F. 563. Plainly, the general rule is that judg-
ment in a criminal case will, after conviction, be
arrested only for matters appearing of record which
278 Iva Ikuko Toguri D’ Aquino
would render the judgment, if entered, erroneous;
the evidence being no part of the record for such
purpose. Horwitz v. U.S., 5 F. 2d 129, 131.
Defects in the indictment must be substantial, and
not of form; the latter are deemed to be cured by
the verdict. F.R. Crim. P. 52; Hall vy. U. 8, 27%
F. 19; Gibson v. U. S., 31 F. 2d 19, cert. den. 279
U. 8S. 866, 73 L. ed. 1004; Brewer v. U. 8., 290 F.
807; Gay v. U.S., 12 F. 2d 483. A motion in arrest
will not le for failure to prove venue. Piacenza v.
U.S., 293 EF. 164.
Motion For Judgment Of Acquittal
The weight of conflicting evidence is not for this
court. The question is the sufficiency of the Gov-
ernment’s evidence to go to the jury and to sustain
the verdict. May v. U. S., 175 H. 2d 994) d00e
There being substantial evidence in support of the
indictment, the court would err if it granted de-
fendant’s motion for judgment of acquittal. Pierce
wv. U. S., 252 U. S. 289, 251, 252, 64 1. ed. 5427 ae
question whether the effect of the evidence was such
as to overcome any reasonable doubt of guilt was
for the jury, not the court, to decide. Pierce v.
U. S., 252 U. 8. 239, 251, 252, 64 L. ed. 542. Ona
motion for judgment of acquittal, previously known
as a motion for an instructed verdict, the court is
required to approach the evidence from a stand-
point most favorable to the Government, and to
assume the truth of the evidence adduced in support
of the indictment. If on this basis there is substan-
vs. United States of America 279
tial evidence justifying an inference of guilt, irre-
spective of any countervailing testimony that may
have been introduced, the motion for judgment of
acquittal, if interposed prior or subsequent to ver-
dict, must be denied, as a factual jury question only
is involved. U. S. v. Robinson, 71 F. Supp. 9;
Curley v.U.S., 160 F. 2d 229; F. R. Crim. P. 29.
Motion For New Trial
The grant or denial of a motion for new trial
rests in the sound discretion of the federal trial
jurist, and your Honor’s denial of defendant’s mo-
tion is not reviewable in the absence of a clear show-
ing of an abuse of discretion. Mattox v. U. S8., 146
U.S. 140, 36 L. ed. 917.
Conclusion
The post-trial motions should be denied.
Respectfully submitted,
/s/ FRANK J. HENNESSY,
United States Attorney.
/s/ TOM DeWOLFE,
/s/ JAMES W. KNAPP,
Special Assistants to the
Attorney General.
[Endorsed], Filed October 6, 1949.
280 Iva Ikuko Toguri D’ Aquino
DEFENDANT’S PROPOSED INSTRUCTIONS
(These instructions have been covered by the
Court in other instructions. Defendant Excepts
on the ground they have not been so covered.)
Defendant’s Proposed Instruction No. 19
The jury are the sole judges of the credibility of
and the weight which is to be given to the testimony
of the witnesses testifying at this trial. In weigh-
ing the testimony of each witness they should give
it careful serutiny and consider all the circum-
stances under which the witness testified; his or
her demeanor on the stand; the relation which he
or she bears to the government; his or her apparent
candor and fairness, or lack thereof; the reason-
ableness or unreasonableness of his or her story; the
extent to which he or she is corroborated or con-
tradicted by other credible evidence; and in short,
any circumstances that tend to throw light upon his
or her credibility.
United States v. Haupt, 47 F. Supp. 836, 840.
Defendant’s Proposed Instruction No. 21
In order to justify a verdict of guilty based in
part upon circumstantial evidence, the facts in the
chain of circumstances relied upon must be con-
sistent with the guilt of the accused, and incon-
sistent with every reasonable supposition of in-
nocence. If the facts and circumstances shown by
the evidence are as consistent with innocence as with
us. United States of America 281
guilt, the jury should acquit the accused. As I shall
instruct you hereafter, there are certain phases of
the case for which circumstantial evidence is insuffi-
cient in law and on which the government is re-
quired to offer direct evidence. On all such issues
you must find for the defendant if you find that the
government has failed to produce the legally re-
quired amount of direct evidence.
Modeled on instruction 7-A in U.S. v. Kawa-
kita, Winm. No. 19,665, U.S.D.C., S.D. Cal.,
Cen. Div.
Defendant’s Proposed Instruction No. 27
The defendant, Iva Ikuko Toguri d’Aquino, is not
charged with levying war against the United States,
so it is not necessary to consider here that aspect
of the crime of treason.
The alleged treason charged in the indictment is
that the defendant adhered to the enemies of the
United States, giving them aid and comfort in
Japan.
Modeled on instruction 11-A given in U. S.
v. Kawakita, Crim. No. 19,665, U.S.D.C.,
S.D. Cal., Cen. Div.
Defendant’s Proposed Instruction No. 28
The crime of treason for the purposes of this case
consists of two elements: adherence to the enemy,
and rendering him aid and comfort.
Cramer v. United States, 325 U.S. 1, 29.
282 Iva Ikuko Toguri D’ Aquino
Defendant’s Proposed Instruction No. 33
The fourth essential element of the charge in the,
indictment is the allegation:
That the overt act or acts so committed by the
defendant actually gave aid and comfort to the
enemies of the United States, to wit, the Govern-
ment of Japan.
An overt act may not serve as a basis for convic-
tion of the crime of treason unless the act be trea-
sonable in character. That is to say, the overt act
must be an act which ‘‘really was aid and comfort
to the enemy.”’
In the words of the United States Supreme Court
in the case of United States v. Cramer, decided
April 28, 1945 (325 U.S. 1, 34):
“The very minimum function that an overt act
must perform in a treason prosecution is that it
show sufficient action by the accused, in its setting,
to sustain a finding that the accused actually gave
aid and comfort to the enemy.’’
Thus the character of the overt act must be
judged in its setting, in the light of any related
facts and events, in the hght of all surrounding
circumstances as shown by all the evidence. Overt
acts of related events, may turn out to be acts which
were not of aid or comfort to the enemy.
Modeled on instruction 11-0 given in U. BS. v.
Kawakita, Crim. No. 19,665, U.S.D.C., 8.D.
Cal., Cen. Div.
vs. United States of America 283
Defendant’s Proposed Instruction No. 36
The seventh and eighth essential elements of the
charge set forth in the indictment are:
That such overt act or acts of treason were so
committed at or near Radio Tokyo on the Island of
Honshu, Japan, outside the jurisdiction of any :par-
ticular state or district of the United States; and
that the Northern District of California is the dis-
trict of the United States where the defendant was
thereafter first brought.
The burden is upon the prosecution to prove be-
yond reasonable doubt those facts in order to show
that this court—the United States District Court
for the Northern District of California—is the place
provided by law for the trial of the defendant for
the offense of treason charged.
Article III, Sec. 2 of the Constitution of the
United States provides that: ‘‘The Trial of all
crimes ... Shall be held in the State where the
said Crimes shall have been committed; but when
not committed within any State, the Trial shall be
at such Place or Places as the Congress may by
Law have directed.’’
Pursuant to the power thus conferred by the
Constitution, the Congress in 1790 enacted in sub-
stance what is today Sec. 102 of Title 28 of the
United States Code, which provides that: ‘‘The
trial of all offenses committed upon the high seas,
or elsewhere out of the jurisdiction of any par-
ticular State or district, shall be in the district
284 Iva Ikuko Toguri D’ Aquino
where the offender is found, or into which he is first
brought.”’
The crime of treason charged in the indictment,
if committed by the defendant, was committed in
Japan—‘‘out of the jurisdiction of any particular
state or district’’ of the United States. The North-
ern District of California covers generally the
Northern portion of the State, including the City
and County of San Francisco.
Modeled on instruction 11-Y given in U. S.
v. Kawakita Criminal No. 19,665, U.S.D.C.,
Southern District of California, Central
Division.
Defendant’s Proposed Instruction No. 40
It is a well settled principle of law that a person
cannot, by mere words, be guilty of treason.
Wimmer v. U.8., (CCA-6), 264 Fed. 11-13.
Defendant’s Proposed Instruction No. 43
Overt acts cannot rest upon mere inference or
conjecture.
In re Charge to Grand Jury, 30 Fed. Case
No. 18,272, 1 Bond 609.
Defendant’s Proposed Instruction No. 51
An act which renders aid and comfort to the
enemy must be an act which actually and substan-
tially strengthened or tended to strengthen the
enemy in the conduct of the war; or an act which
vs. United States of America 285
actually and substantially weakened or tended to
weaken the power of the country to resist or attack
the enemy. -
Cramer v. United States, 325 U.S. 1, 29.
Defendant’s Proposed Instruction No. 54
Before you ean convict the defendant it is neces-
sary that all twelve of you should agree on one and
the same alleged overt act. It is not sufficient if
some of you agree as to one alleged overt act and
others agree as to another.
Defendant’s Proposed Instruction No. 55
‘“The Court instructs the jury that witnesses tes-
tifying to oral or written statements made by the
defendant before the commencement of this trial,
are not witnesses within the meaning of the consti-
tutional provision which requires two witnesses to
the same overt act for a conviction of treason.
‘“The court further instructs the jury that neither
oral nor written statements made by the defendant
before the commencement of this trial, which have
been testified to by one or more witnesses, can be
considered by the jury as a substitute for the re-
quirement of the Constitution of the United States
that ‘No person shall be convicted of ‘Treason
unless on the testimony of two witnesses to the same
overt act, or on confession in open Court.’ ”’
(U.S. v. Haupt, 136 Fed. (2) 661, 674).
286 Iva Ikuko Toguri D’ Aquino
Defendant’s Proposed Instruction No. 56
Witnesses testifying to the identity of the voice
contained in the recordings as that of the defendant
are not witnesses within the meaning of the consti-
tutional provision which requires two witnesses to
the same overt act for a conviction of treason.
United States v. Haupt, 136 F. 2nd 661.
Defendant’s Proposed Instruction No. 59
Circumstantial evidence, no matter how con-
clusive, cannot supplant the Constitutional require-
ment that the overt act must be established by the
testimony of two witnesses. |
United States v. Robinson, 259 F.. 685, 694.
Defendant’s Proposed Instruction No. 60
The written statement of the defendant made to
an agent of the Federal Bureau of Investigation
cannot supply defects in the Constitutional require-
ment of two witnesses to the overt act.
Haupt v. United States, 91 L. Ed. 803, 809.
Defendant’s Proposed Instruction No. 66
Motive and intent are not synonymous; motive is
the moving cause which induces action and has to
do with desire, while intent is the purpose or design
with which an act is done and involves the will.
State v. Logan, 344 Mo. 351, 122 ALR 417.
Weir v. Commr., 109 F. 2nd 996, 999.
vs. Umted States of America 287
Defendant’s Proposed Instruction No. 71
A citizen of the United States residing in Japan
at the outbreak of war between the two and con-
tinuing to reside in Japan thereafter does not
thereby adhere to the enemies of the United States.
The Venus, 8 Cranch 253.
Defendant’s Proposed Instruction No. 72
Such a citizen of the States owes allegiance not
only to the United States but also to Japan, such
allegiance to Japan being a local allegiance.
The Venus, 8 Cranch 253.
Defendant’s Proposed Instruction No. 75
If you find that the defendant did voluntarily
commit one or more of the overt acts charged in the
indictment and submitted for your consideration,
and that such overt act or acts ‘‘actually gave aid
and comfort to the enemy,’’ but entertain a reason-
able doubt as to whether the defendant had an in-
tent to adhere to or assist our enemies in their pros-
ecution of the war, or to hamper the United States
in its prosecution of the war, then the defendant
did not act with treasonable intent, and you must
acquit her.
Modeled on instruction 11-X given in U.S. v.
Kawakita Criminal No. 19,665, U.S.D.C.,
Southern District of California, Central
Division.
288 Iva Ikuko Toguri D’ Aquino
Defendant’s Proposed Instruction No. 110
The natural born subject of a belligerent country
who leaves the land of his or her birth before the
war and resides within the realm of the other
belligerent without becoming naturalized or com-
pletely divested of his or her native rights is on the
outbreak of war an alien enemy of the government
under which he or she resides.
06 Am. Jur. 188.
Defendant’s Proposed Instruction No. 111
If you find that the defendant was an American
citizen at the time of the outbreak of the war be-
tween the United States and Japan on Dee. 8, 1941,
and that she resided in Japan at that time, then in
Japan she had the status of an alien enemy.
Cf. Ludecke v. Watkins, 335 U. 8. 160.
Defendant’s Proposed Instruction No. 140
No overt act charged in the indictment can con-
stitute treason against the United States if at the
time of the alleged overt act the defendant had lost
her American citizenship.
Defendant’s Proposed Instruction No. 144
If you find from the evidence that the defendant
voluntarily renounced or abandoned or otherwise
lost her American citizenship or nationality prior to
or during the period specified in the indictment,
commencing November 1, 1948, and ending August
vs. United States of America 289
14, 1945, you must acquit the defendant, because the
overt acts charged in the indictment, even if com-
mitted by her, could not constitute the crime of
treason against the United States, since her duty
of allegiance ceased with termination of her Amer-
ican citizenship.
So if you should find from the evidence beyond a
reasonable doubt that during the period specified
in the indictment the defendant remained an Amer-
ican citizen owing allegiance to the United States,
it would be your duty then to consider the second
essential element of the charge as set forth in the
indictment.
Modeled in instruction 11-L in U.S. v. Kawa-
KitaeCrim, No, 19'665, U.S..C., 8.D. Cal.,
Cen. Div.
Defendant’s Proposed Instruction No. 158
If two conclusions can reasonably be drawn from
the evidence, one of innocence and one of guilt, the
former should be adopted. |
United States v. Haupt, 47 F. Supp. 836, 840.
(‘These instructions have been covered by the
Court in other instructions. Defendant Excepts
on the ground they have not been so covered. )
[Endorsed]: Filed October 6, 1949.
290 Iva Ikuko Togurt D’ Aquino
DEFENDANT’S PROPOSED INSTRUCTIONS
(These instructions have been refused by the
Court as not correct statements of the law, not
applicable to the evidence in this case, or al-
ready covered by other instructions. Defend-
ant Excepts to their refusal.)
Defendant’s Proposed Instruction No. 1
The evidence will not support a conviction upon
the ground that the defendant committed the act
alleged as overt act numbered one in the indictment.
State v. Logan, 344 Mo. 351, 122 ALR 417.
Weir v. Commr., 109 F.. 2nd 996, 999.
Defendant’s Proposed Instruction No. 2
The evidence will not support a conviction upon
the ground that the defendant committed the act
alleged as overt act numbered two in the indictment.
State v. Logan, 344 Mo. 351, 122 ALR 417.
Weir v. Commr.,-109 F. 2nd 996, 999.
Defendant’s Proposed Instruction No. 3
The evidence will not support a conviction upon
the ground that the defendant committed the act
alleged as overt act numbered three in the indict-
ment.
State v. Logan, 344 Mo. 351, 122 ALR 417.
Weir v. Commr., 109 F. 2nd 996, 999.
vs. Umted States of America 291
Defendant’s Proposed Instruction No. 4
The evidence will not support a conviction upon
the ground that the defendant committed the act
alleged as overt act numbered four in the indict-
ment.
State v. Logan, 344 Mo. 351, 122 ALR 417.
Weir v. Commr., 109 F. 2nd 996, 999.
Defendant’s Proposed Instruction No. 5
The evidence will not support a conviction upon
the ground that the defendant committed the act
alleged as overt act numbered five in the indict-
ment.
State v. Logan, 344 Mo. 351, 122 ALR 417.
Weir v. Commr.,.109 F. 2nd 996, 999.
Defendant’s Proposed Instruction No. 6
The evidence will not support a conviction upon
the ground that the defendant committed the act
alleged as overt act numbered six in the indict-
ment.
State v. Logan, 344 Mo. 351, 122 ALR 417.
Weir v. Commr., 109 F. 2nd 996, 999.
Defendant’s Proposed Instruction No. 7
The evidence will not support a conviction upon
the ground that the defendant committed the act
alleged as overt act numbered seven in the indict-
ment.
State v. Logan, 344 Mo. 351, 122 ALR 417.
Weir v. Commr., 109 F. 2nd 996, 999.
292 Iva Ikuko Togurt D’ Aquino
Defendant’s Proposed Instruction No. 8
The evidence will not support a conviction upon
the ground that the defendant committed the act
alleged as overt act numbered eight in the indict-
ment.
State v. Logan, 344 Mo. 351, ALR 417.
Weir v. Commr., 109 FE’. 2nd 996, 999.
Defendant’s Proposed Instruction No. 30A
You cannot consider the defendant’s admissions
upon any of the issues of (1) citizenship (2) aid
and comfort or (3) intention unless you first find
that the Government has introduced other eredible
corroborative evidence on the same issue.
Pearlman v. U. 8., 10 F (2d), 460, 461, 462
(CCA 9).
Goff v. U. S., 257 F. 294 (CCA 8).
Defendant’s Proposed Instruction No. 38
The words ‘‘first brought,’’ as used in Judicial
Code, Section 41, upon which the venue in this Court
is based, mean brought under lawful custody.
Defendant’s Proposed Instruction No. 42
You are instructed that the so-called overt acts
charged in the indictment are of the type which are
allowed to be charged in conspiracy cases but that
they do not constitute the type of overt acts con-
templated by the constitutional definition of treason -
and, in consequence, you are instructed to return a
verdict of acquittal in favor of the defendant.
vs. Umted States of America 293
Defendant’s Proposed Instruction No. 44
Every act, movement, deed and word of the de-
fendant charged to constitute treason must be sup-
ported by the testimony of two witnesses.
Cramer v. United States, 325 U.S. 1, 34, 35.
Defendant’s Proposed Instruction No. 45
Where the overt acts are single, continuous, and
composite, made up of or proved by several circum-
stances and passing through several stages, it is
necessary that there be two witnesses to each cir-
cumstance.
United States v. Haupt, 186 F. 2nd 661, 675.
United States v. Robinson, 259 F’. 685.
Defendant’s Proposed Instruction No. 46
If such an act is alleged as an overt act the entire
chain of events of which it is one step must be
established by the direct testimony of two witnesses.
State v. Logan, 344 Mo. 351, 122 ALR. 417.
Weir v. Commr., 109 F. 2nd 996, 999.
Defendant’s Proposed Instruction No. 48
The defendant must be shown beyond a reason-
able doubt to have given both aid and comfort by
the overt acts alleged; it is not enough to show that
the act gave comfort to the enemy if it did not also
actually aid the enemy.
State v. Logan, 344 Mo. 351, 122 ALR. 417.
Weir v. Commr., 109 F. 2nd 996, 999.
294 Iva Ikuko Togurt D’Aquino
Defendant’s Proposed Instruction No. 49
The fact that the enemy may have believed that
the defendant’s commentaries would aid Japan or
weaken the United States in the prosecution of the
war is not conclusive evidence that they would have
that effect.
State v. Logan, 344 Mo. 351, 122 ALR. 417.
Weir v. Commr., 109 F.. 2nd 996, 999.
Defendant’s Proposed Instruction No. 50
It is a necessary element in every overt act
charged against the defendant that such alleged act
should have actually given aid and comfort to the
enemy. The elements of aid and comfort must be
proven by two witnesses and beyond a reasonable
doubt just as much as every other element of each
overt act which is alleged.
Cramer v. U.S., 325, U. S. 1, 34-5, 89 L. Ed.
1441, 1461.
Haupt v. U. 8., 330 U. 8. 631, 635, 91 L. Hd.
1145, 1150.
Defendant’s Proposed Instruction No. 52
An act which in itself gives the enemy no aid or
comfort but is merely a step in a program which
if and when completed may give the enemy aid and
comfort is not such an overt act as must be alleged
and proved to warrant a conviction of treason.
State v. Logan, 344 Mo. 351, 122 ALR. 417.
Weir v. Commr., 109 F. 2nd 996, 999.
vs. United States of America 295
Defendant’s Proposed Instruction No. 60
There is no direct evidence that any of the alleged
overt acts aided Japan or weakened the United
States in the prosecution of the war.
State v. Logan, 344 Mo. 351, 122 ALR. 417.
Weir v. Commr., 109 F. 2nd 996, 999.
Defendant’s Proposed Instruction No. 70
No one of the overt acts alleged in the indictment
is in itself evidence of treasonable purpose and
intent.
State v. Logan, 344 Mo. 351, 122 ALR. 417.
Weir v. Commr., 109 F. 2nd 996, 999.
Defendant’s Proposed Instruction No. 74
There mere fact that a citizen of the United
States resident in Japan rendered services to a
Japan corporation and received compensation there-
for does not establish that she is guilty of treason
to the United States.
The Venus, 8 Cranch 253.
Defendant’s Proposed Instruction No. 76
The fact that the defendant made records for
broadcast by the Japan Radio Corporation to the
United States while the two countries were at war,
does not alone establish that she was guilty of
treason.
The Venus, 8 Cranch 253.
296 Iva Ikuko Togurt D’ Aquino
Defendant’s Proposed Instruction No. 83
If the jury find that the defendant’s employment
by the Japan Radio Corporation and by other agen-
cies of the Japan government was employment for
which only a Japan national was eligible, the de-
fendant was expatriated and could not be guilty of
treason.
United States v. Haupt, 1386 F. 2nd 661, 673.
United States v. Robinson, 259 F. 685.
Defendant’s Proposed Instruction No. 84
If the jury find that the defendant did not intend
to expatriate herself although urged to do so by
others, that fact may be considered by the jury as
some evidence that she did not intend to betray the
United States.
United States v. Haupt, 136 F. 2nd 661, 675.
United States v. Robinson, 259 F. 685.
Defendant’s Proposed Instruction No. 88
Various alleged statements by the defendant as
well as records of voice tests have been admitted
into evidence for your consideration. Before you
deal with these from any other standpoint you must
first determine whether the defendant made each
of these voluntarily and of her own free will not
acting either under inducement or threats. If as to
any you do not find that the Government has shown
the statement to have been made voluntarily, then
vs. United States of America 297
you must discard any such alleged statement from
your consideration of the case.
Prenmyv. U. Sy #63 U.S. 532.
Defendant’s Proposed Instruction No. 89
A phonographic recording of a short wave radio
broadcast is the best evidence of the nature and
contents of that recording. A witness’s oral testi-
mony of his recollection of what he heard as to the
nature and contents of such a broadcast is but sec-
ondary evidence which, at best, is but a poor sub-
stitute for the phonographic recording itself. In
consequence, you are instructed to view with cau-
tion or distrust any such testimony as to the nature
and contents of a broadcast to which such a witness
listened between 4 and 6 years ago.
Defendant’s Proposed Instruction No. 105
You are instructed that the original radio script
written by a person is the best evidence of its con-
tents and that the present oral testimony of a wit-
ness as to its nature and contents four to six years
since he read it is at best but a poor substitute for
the original script itself and that the testimony of
such a witness as to its contents is to be viewed with
eaution or distrust.
Defendant’s Proposed Instruction No. 156
You are instructed that Title 10 U. 8S. Code, See.
15, provides as follows: |
‘It shall not be lawful to employ any part of the
298 Iva Ikuko Togurt D’ Aquino
Army of the United States, as a posse comitatus, or
otherwise, for the purpose of executing the laws, ex-
cept in such cases and under such circumstances as
such employment of said force may be expressly
authorized by the Constitution or by act of Con-
gress; and any person wilfully violating the pro-
visions of this section shall be deemed guilty of a
misdemeanor and on conviction thereof shall be pun-
ished by a fine not exceeding $10,000 or imprison-
ment not exceeding two years or by both such fine
and imprisonment.”’
You are also instructed that neither the Constitu-
tion of the United States nor any act of Congress
authorizes any part of the Army of the United
States to arrest, detain or imprison the defendant in
Japan or to transport her to the United States.
See 17 Opin. Attorney Gen. 71.
19 Opin. Attorney Gen. 293.
Defendant’s Proposed Instruction No. 39
It is the duty of all prisoners of war to obey the
laws, rules and regulations in force in the country
where they are detained.
While held by the enemy, prisoners of war are
not of course amenable to the discipline of their own
officers, but they are subject to discipline and pun-
ishment by the detaining power for violations of
any law, rule or regulation of the detaining power.
Given in instruction 11-O (2) in U.S. v. Kawa-
kita, Crim. No. 19,665, U.S.D.C., S.D.Cal., Cen.Div.
us. United States of America 299
Defendant’s Proposed Instruction No. 106
Article VI, Clause 2 of the U. S. Constitution
' provides in part: ‘‘This Constitution and the laws
of the United States which shall be made in pur-
suance thereof and all treaties made under the au-
thority of the United States shall be the supreme
law of the land.”’
Defendant’s Proposed Instruction No. 107
The Geneva Convention of 1929, to which the
United States, Japan and other countries were par-
ties, was and is a treaty made under the authority
of the United States.
In re Yamashita, 327 U.S. 1, 28.
Defendant’s Proposed Instruction No. 108
The provisions of the Geneva Convention between
the United States and Japan remained in force at
the outbreak of the war between the United States
and Japan and throughout the duration of the war.
Cf. Clark v. Allen, 331 U.S. 503, 508.
Defendant’s Proposed Instruction No. 109
Article 82 of the Geneva Convention provides as
follows:
‘“‘The provisions of the present Convention must
be respected by the High Contracting Parties under
all circumstances. |
. “Tn ease, in time of war, one of the belligerents
is not a party to the Convention, its provisions shall
300 Iva Ikuko Toguri D’ Aquino
nevertheless remain in foree as between the bel-
ligerents who are parties thereto.’’
47 U.S. Stats. at L., pgs. 2021-2059.
Defendant’s Proposed Instruction No. 112
If you find that the defendant was an American
citizen at the outbreak of the war between the
United States and Japan on December 8, 1941, and
that she was in Japan at that time, then she was
in contemplation of law a prisoner of war of Japan.
Rex vy. Vine Street Police Station [1916] 1
KB 268.
Ludecke v. Watkins, 335 U.S. 160.
Defendant’s Proposed Instruction No. 113
If you find that the defendant was an American
citizen at the outbreak of the war between America
and Japan on December 8, 1941, and that she was at
that time in Japan, you are instructed that she
had and continued to have the same rights as a
prisoner of war.
Cf. Rex v. Vine St. Police Station [1916] 1
KB 268.
Defendant’s Proposed Instruction No. 114
‘‘Eixcept as otherwise hereinafter indicated, every
person captured or interned by a belligerent power
because of the war is, during the period of such
captivity or internment, a prisoner of war, and is
vs. United States of America 301
entitled to be recognized and treated as such under
the laws of war.’’
Art. 70 of War Department Publication
Basic Field Manual, Rules of Land War-
fare F'M 27-10 (1940).
Defendant’s Proposed Instruction No. 115
Where the United States by treaty has consented
that its military prisoners of war may do certain
kinds of work while under the power of an enemy
nation and American civilians are in the enemy
country at the outbreak of war with the United
States, the United States does not punish its civilian
citizens for treason for doing exactly the same thing
which it has permitted to its military prisoners.
Defendant’s Proposed Instruction No. 116
Article 2 of the Geneva Convention provides in
part:
‘‘Prisoners of war are in the power of the hostile
Power, but not of the individuals or corps who have
eaptured them.”’
Aeros talkies. 2021-2031.
Defendant’s Proposed Instruction No. 117
Article 45 of the Geneva Convention provides:
‘Prisoners of war shall be subject to the laws,
regulations, and orders in force in the armies of the
detaining Power.
‘An act of insubordination shall justify the adop-
302 Iva Ikuko Toguri D’ Aquino
tion towards them of the measures provided by such
laws, regulations and orders. |
‘‘The provisions of the present chapter, however,
are reserved.”’
This reservation covers exceptions which I shall
state to you in other instructions.
47 U.S. Stats. at L., 2021-2046.
Defendant’s Proposed Instruction No. 118
Article 27 of the Geneva Convention provides in
eames:
‘‘Belligerents may utilize the labor of able pris-
oners of war, according to their rank and aptitude,
officers and persons of equivalent status excepted.”’
47 U.S. Stats. at L., pgs. 2021-2040.
Defendant’s Proposed Instruction No. 119
Except where otherwise provided by the terms of
the Geneva Convention, the defendant while in
Japan, was bound to obey the laws of Japan and
the orders of Japanese officials both civil and
military.
47 USS. Stats. at L., 2021-2046 (Art. 45).
Defendant’s Proposed Instruction No. 120
Article 31 of the Geneva Convention provides in
part:
‘‘Labor furnished by prisoners of war shall have
no direct relation with war operations. It is espe-
cially prohibited to use prisoners for manufacturing
vs. Umted States of America 303
and transporting arms or munitions of any kind,
or for transporting material intended for combatant
units. ’’
47 U.S. Stats. at L., pgs. 2021-2041.
Defendant’s Proposed Instruction No. 121
Article 29 of the Geneva Convention provides:
‘‘No prisoner of war may be employed at labors
for which he is physically unfit.”’
47 U.S. Stats. at L., pgs. 2021-2040.
Defendant’s Proposed Instruction No. 122
Article 28 of the Geneva Convention provides:
‘The detaining Power shall assume entire respon-
sibility for the maintenance, care, treatment and
payment of wages of prisoners of war working for
the account of private persons.’’
47 U.S. Stats. at L., pgs. 2021-2040.
Defendant’s Proposed Instruction No. 123
Article 34 of the Geneva Convention provides in
part:
‘‘Prisoners of war shall not receive wages for
work connected with the administration, manage-
ment and maintenance of the camps.
‘““Prisoners utilized for other work shall be en-
titked to wages to be fixed by agreements between
the belligerents.
“hese agreements shall also specify the part
which the camp administration may retain, the
304 Iva Ikuko Toguri D’ Aquino
amount which shall belong to the prisoner of war
and the manner in which that amount shall be put
at his disposal during the period of his captivity.
‘“While awaiting the conclusion of the said agree-
ments, payment for labor of prisoners shall be set-
tled according to the rules given below:
_ a) Work done for the State shall be paid for
in accordance with the rates in force for soldiers
of the national army doing the same work, or, if
none exists, according to a rate in harmony with
the work performed.
‘*h) When the work is done for the account of
other public administrations or for private persons,
conditions shall be regulated by apes with the
military authority.’’
47 U.S. Stats. at L., pgs. 2021-2042.
Defendant’s Proposed Instruction No. 124
It was legal for defendant to receive pay from the
Government of Japan or any of its agencies if you
find that such was the fact. By the terms of the
Geneva Convention with exceptions not material
here, the Government of Japan was obliged to pay
all American prisoners of war for work which they
did while they were such prisoners.
Defendant’s Proposed Instruction No. 125
The provisions of the Geneva Convention consti-
tute a consent by the United States that its prison-
ers of war shall obey the orders of the opposite
vs. United States of America 305
belligerent power to the extent that they are not
expressly forbidden by the terms of that convention.
Defendant’s Proposed Instruction No. 126
As between the United States and its citizens, the
provisions of the Geneva Convention legalize all
acts done by American citizens in an enemy country
which the terms of the Convention do not forbid.
Defendant’s Proposed Instruction No. 127
The only work which the Government of Japan
could not order American prisoners to do was work
which has a direct relation with war operations,
such as manufacturing or transporting arms or
munitions. If you do not find beyond a reasonable
doubt that the defendant performed work which
had a direct relation with war operations, then you
must find the defendant not guilty.
Defendant’s Proposed Instruction No. 128
A person may do voluntarily anything which he
or she may be legally ordered to do.
Defendant’s Proposed Instruction No. 129
Prisoners of war do not have to decide at their
peril whether work which they are ordered to do
by the enemy belligerent has a direct or an indirect
relation with war operations. If you do not find
beyond a reasonable doubt that the defendant her-
self believed that the work she was doing had a
306 Iva Ikuko Toguri D’ Aquino
direct relation with war operations, then you must
find her not guilty.
Defendant’s Proposed Instruction No. 130
The defendant was not bound to distinguish at
her peril as to whether work which she was ordered
to do had a direct or an indirect relation with war
operations. If any J apanese official, civil or mili-
tary, in violation of the Geneva Convention ordered
defendant to do work which had a direct relation
with war operations, defendant was justified in
obeying such order and her act in doing so would
not be treason. If you entertain a reasonable doubt
as to whether any act done by defendant, regardless
of its nature, was done in obedience to the orders
of any Japanese official then you must find her not
guilty.
Defendant’s Proposed Instruction No. 181
You are instructed that the work which the de-
fendant did while she was a resident of Japan dur-
ing the war was not such as had a direct relation
with war operations. You must therefore find her
not guilty.
Defendant’s Proposed Instruction No. 132
Unless you find beyond a reasonable doubt that
the defendant performed acts which are not per-
mitted to prisoners of war by the terms of the
Geneva Convention, then you must find her not
suilty.
vs. United States of America 307
Defendant’s Proposed Instruction No. 133
If the defendant did no more than play music
which was intended to get listeners for other parts
of a radio program which contained direct propa-
ganda to the American troops, then the defendant
did work which had only an indirect relation with
war operations. Such work is permitted by the
terms of the Geneva Convention and the defendant
cannot be guilty of treason because of it.
Defendant’s Proposed Instruction No. 134
If you entertain a reasonable doubt as to whether
the defendant did any more than broadcast and
introduce music which was to serve as a background
for propaganda broadeasts, then the prosecution has
not proven beyond a reasonable doubt that the
defendant did work which has a direct relation with
war operations. In this event you must find the
defendant not guilty.
Defendant’s Proposed Instruction No. 135
If you find that the defendant discussed her par-
ticipation in a radio broadcast or the nature of a
radio broadcast which she was to make and if you
do not find beyond a reasonable doubt that said
radio broadcast amounted to more than the an-
nouncements for a musical program and a musical
program itself, intended to attract listeners’ interest
for other subjects of a broadcast, then you are in-
structed that the government has not proven beyond
308 Iva Ikuko Togurt D’ Aquino
a reasonable doubt that the defendant did any work
which has a direct relation with war operations. If
you entertain such reasonable doubt you must find
the defendant not guilty.
Defendant’s Proposed Instruction No. 136
If you find beyond a reasonable doubt that the
defendant did prepare a radio script for subsequent
broadeast but 1f you do not find beyond a reasonable
doubt that said radio script was anything other
than the introduction for music which was to be
played to attract listener interest for other parts
of a broadeast, then the government has not proved
beyond a reasonable doubt that the defendant en-
gaged in work which has a direct relation with war
operations. If you entertain such a reasonable doubt
you must find the defendant not guilty.
Defendant’s Proposed Instruction No. 137
If any Japanese official, civil or military, in vio-
lation of the Geneva convention ordered defendant
to do work which had a direct relation with war
operations, and defendant believed that she would
be killed, physically injured, beaten or the like if
she disobeyed, then obedience to such order does
not constitute treason.
Defendant’s Proposed Instruction No. 138
Tf you find that defendant did any work which
had a direct relation with war operations, but enter-
:
vs. United States of America 309
tain a reasonable doubt as to whether she was or-
dered to do so and believed she would suffer death,
bodily injury, beating or the like if she disobeyed,
then you must find the defendant not guilty.
Defendant’s Proposed Instruction No. 77
If you find that the broadcasts made by defend-
ant, whether innocent in character or otherwise,
were made by her to aid, encourage or assist the
U.S. and Allied prisoners of war who were forced
to broadcast on the Zero Hour and other Japanese
radio programs then she did not have any guilty
intent to betray the U. 8S. and you must acquit her.
Defendant’s Proposed Instruction No. 78
If you find that U. 8. and Allied POWs were
held under duress by the Japanese and that the
defendant consented to become a radio announcer
simply to aid, assist and encourage U.S. and Allied
POWs to defeat the purposes or objectives to which
the Japanese devoted them then her broadcasts,
whatever their character may have been, were ex-
eusable because those POWs were acting under
duress exerted upon them by the enemy, and the
defendant, in aiding, assisting and encouraging
those POWs was aiding and comforting the United
States and its Allies and was injuring our enemy
Japan.
310 Iva Ikuko Togurt D’ Aquino
Defendant’s Proposed Instruction No. 79
If you find that the defendant, acting in good
faith, became or was a radio broadcaster for the
purpose of encouraging, assisting and bolstering up
the spirits and morale of our U. S. and Allied
POWs and what she did was designed towards
that goal you must return a verdict of acquittal in
her favor because in such an event she had no
intent to commit any unlawful act against the
United States.
Defendant’s Proposed Instruction No. 85
Under the circumstances of this case, the defend-
ant cannot be found to have had an intent to betray
the United States if the motives for her acts was
good and to aid the United States.
United States v. Haupt, 47 F. Supp. 836, 844.
Defendant’s Proposed Instruction No. 90
If you find that one or more of the U. 8. and
Allied prisoners of war were responsible for the
Japanese authorities selecting or ordering the de-
fendant to become a radio announcer then you must
return a verdict of acquittal in favor of the de-
fendant because whatever she said or did in broad-
casting, regardless of its character, was caused by
those POWs who, as U. 8. and Alhed officers, were
in actuality her superior officers and she was bound
to aid and assist them the same as any subordinate
officer or men serving in our armed forces who
were under their immediate commands.
vs. United States of America 311
Defendant’s Proposed Instruction No. 91
If you find that any U.S. or Allied POWs were
directly or indirectly responsible for having the de-
fendant selected to become a broadcaster and that
they led her to believe and she did believe that in so
doing she would be assisting them to defeat the pur-
poses of the Japanese you must return a verdict
of acquittal. |
Defendant’s Proposed Instruction No. 92
As to any overt act or acts charged in the indict-
ment and submitted for your consideration which
you may find to have been committed by the defend-
ant, if you entertain a reasonable doubt whether the
defendant did the act or acts willingly or volun-
tarily, or so acted only because performance of the
duties of her employment required her to do so or
because of other coercion or compulsion, you must
acquit the defendant.
Modeled on instruction 11-U given in U. S.
v. Kawakita Criminal No. 19,665, U.S.D.C.,
Southern District of California, Central
Division.
Defendant’s Proposed Instruction No. 93
If you find from the evidence that the defendant
was compelled by the Japanese, that is to say, by
order of the Japanese Imperial Army Headquarters
or by order of Japanese civilian authority at Radio
Tokyo, to become a radio broadcaster and that she
had no choice but to obey such order or orders and
312 Iva Ikuko Toguri D’ Aquino
that, in so doing, she acted in fear that if she
failed so to do her life would be imperiled or she
would suffer grievous physical harm by the Japa-
nese you must return a verdict acquitting her of
the charges brought against her.
Defendant’s Proposed Instruction No. 94
If you find from the evidence that the defendant
believed and had good cause or reason to believe
she was compelled to become an announcer by our
enemies, the Japanese, you must acquit her.
Defendant’s Proposed Instruction No. 95
Jf you find from the evidence that U. 8. or Allied
prisoners of war selected the defendant to become
a broadcaster on the Zero Hour program at Radio
Tokyo and she was ordered to become a broadcaster
by our enemies, the Japanese, then her broadcasts,
regardless of their character, were the broadcasts of
the U. 8. and Allied prisoners of war and, if those
prisoners of war themselves were acting under
duress, i.e., if they were forced by the Japanese to
broadeast, then the defendant’s acts are excusable,
regardless of their character, because her broadeasts —
then, too, like those of those prisoners of war, were
the products of coercion and compulsion by the —
enemy.
vs. United.States of America Sil
Defendant’s Proposed Instruction No. 96
If you find that defendant did any of the acts
eharged in the indictment, but find that she was
acting under fear of bodily injury, beating or the
like if she refused, then you must find for the
defendant on such act.
Defendant’s Proposed Instruction No. 97
If you find that any act charged in the indictment
was done by defendant in fear of death if she re-
fused, then you must find for defendant as to such
act.
Defendant’s Proposed Instruction No. 98
If you find that the defendant did the acts charged
in the indictment, but entertain a reasonable doubt
as to whether or not she was acting under fear of
bodily injury, beating or the like, then you must
find the defendant not guilty.
Defendant’s Proposed Instruction No. 99
If vou find that the defendant did the acts charged
in the indictment but entertain a reasonable doubt
as to whether she was acting under fear of death
when she did them, then you must find her not
guilty.
Defendant’s Proposed Instruction No. 100
If you find that any and all acts charged by the
indictment were done by defendant under fear of
314 Iva Ikuko Togurt D’ Aquino
bodily injury, beating or the like if she refused,
then you must find the defendant not guilty.
Defendant’s Proposed Instruction No. 101
If you find that any and all acts charged by the
indictment were done by defendant under feat of
death if she refused, then you must find her not
guilty.
Defendant’s Proposed Instruction No. 102
If you find that defendant did any of the acts
charged in the indictment, but entertain a reason-
able doubt as to whether she was actually in fear
of death if she refused, then you must find for the
defendant on such act.
Defendant’s Proposed Instruction No. 103
If you find that defendant did any of the acts
charged in the indictment but entertain a reasonable
doubt as to whether she was acting in fear of bodily
injury, beating or the like if she refused, then you
must find for the defendant on such act.
Defendant’s Proposed Instruction No. 104
In reaching a verdict you must take into consid-
eration that a young woman, such as this defendant
was in 1943, would not be expected to have as much
courage in the face of threats and danger from the
enemy as would male soldiers and civilians or as
much as ordinary prudent soldiers or civilians. You
must expect that she would be more prone to fear
vs. United States of America 315
in the face of danger to herself than would a U. S.
soldier or male civilian. If our POWs were held in
duress and acting under fear and were intimidated
into becoming broadcasters by the Japanese it is
reasonable to presume that lessor factors of personal
danger would induce or cause a young woman to be
in great fear and to obey orders issued to her by
the Japanese enemy.
Defendant’s Proposed Instruction No. 1389
If any threats were made to the defendant of
death, bodily injury, beating or the like if she re-
fused to obey orders given to her, it is immaterial
whether such threats were communicated to her di-
rectly by Japanese officials or whether they were
communicated to her by prisoners of war as coming
from Japanese officials.
Defendant’s Proposed Instruction No. 155
If you find that the defendant’s guilt or inno-
cence of the crime charged in this indictment has
been previously passed upon by a competent tri-
bunal either in her favor or against her, then you
are instructed that she has been once in jeopardy
and you must find her not guilty.
Defendant’s Proposed Instruction No. 157
If you find that the defendant was arrested in
Japan on or about October 17, 1945, and continu-
ously thereafter was imprisoned in the Yokohama
316 Iva Ikuko Toguri D’ Aquino
Prison in Japan to on or about November 16, 1945,
and thereafter was imprisoned in the Sugamo
Prison in Japan to on or about October 26, 1946,
by the United States or by authority of the United
States you are instructed to return a verdict of ac-
quittal against her because that punishment in-
flicted upon her by such authority constitutes either
a prior conviction or a prior acquittal of the de-
fendant by the United States and the Fifth Amend-
ment of the Constitution forbids this indictment and
trial because it subjects the defendant twice for
the same alleged offense and puts her twice in jeop-
ardy, in violation of the Fifth Amendment.
Defendant’s Proposed Instruction No. 45-A
It is alleged in the indictment that the Broad-
easting Corporation of Japan was controlled by
the Imperial Japanese Government of Japan. Proof
of this fact, if it be a fact, is an essential part of
every one of the overt acts alleged in the indict-
ment. Unless you find that the Government has
proven beyond a reasonable doubt and with two wit-
nesses that the Broadcasting Corporation of Japan
was an agency of the Imperial Japanese Govern-
ment under Japanese law at the time of the alleged
overt acts you must find the defendant not guilty.
Defendant’s Proposed Instruction No. 45-B
It is alleged in the indictment that the Broadeast-
ing Corporation of Japan was controlled by the Im-
perial Japanese Government of Japan. Proof of |
vs. Umited States of America 317
this fact, if it be a fact, is an essential part of every
one of the overt acts alleged in the indictment. Un-
less you find that the Government has proven be-
yond a reasonable doubt that the Broadcasting Cor-
poration of Japan was an agency of the Imperial
Japanese Government under Japanese law at the
time of the alleged overt acts you must find the de-
fendant not guilty.
Defendant’s Proposed Instruction No. 45-C
It is alleged in the indictment that the Broadcast-
ing Corporation of Japan was controlled by the
Imperial Japanese Government of Japan. Proof
of this fact, if it be a fact, is an essential part of
every one of the overt acts alleged in the indictment.
You must find for the defendant upon each overt act
as to which you are not convinced that the Govern-
ment has proven beyond a reasonable doubt and
with two witnesses that the Broadcasting Corpora-
tion of Japan was an agency of the Imperial Jap-
anese Government under Japanese law at the time
of the alleged overt act.
Defendant’s Proposed Instruction No. 45-D
It is alleged in the indictment that the Broadcast-
ing Corporation of Japan was controlled by the
Imperial Japanese Government of Japan. Proof
of this fact, if it be a fact, is an essential part of
every one of the overt acts alleged in the indict-
ment. You must find for the defendant upon each
overt act as to which you are not convinced that the
318 .Iva Ikuko Togurt D’ Aquino
Government has proven beyond a reasonable doubt
that the Broadcasting Corporation of Japan was
then an agency of the Imperial Japanese Govern-
ment under Japanese law at the time of the alleged
overt act.
Defendant’s Proposed Instruction No. 161
Amendment VI to the United States Constitution
provides in part as follows:
‘In all criminal prosecutions, the accused shall
enjoy the right to a speedy . . . trial.’’
Defendant’s Proposed Instruction No. 162
If you find that the defendant was not accorded
a speedy trial by the United States, you must ac-
quit her.
Amendment VI, U. 8. Constitution.
Defendant’s Proposed Instruction No. 163
If you find that the defendant was denied a
speedy trial by the actions of the United States or
its officers, you must acquit the defendant.
Amendment VI, U. S. Constitution.
Defendant’s Proposed Instruction No. 164
If you have a reasonable doubt as to whether
the defendant was accorded a speedy trial by the
United States, you must acquit the defendant.
Amendment VI, U. S. Constitution.
us. Umted States of America 319
Defendant’s Proposed Instruction No. 165
If you find that the United States incarcerated
the defendant for thirteen months or thereabouts
without bringing charges against her, it deprived
her of the constitutional right to a speedy trial,
and you must acquit the defendant.
Defendant’s Proposed Instruction No. 166
If you entertain a reasonable doubt as to whether
the actions of the United States accorded or denied
a speedy trial to defendant, and if you entertain a
reasonable doubt as to whether all material evidence
is now available which was available at the time
of the defendant’s first arrest in September of
1945, then you must acquit the defendant.
U.S. v. MeWilliams, 163 Fed. (2d), 695, 696.
Defendant’s Proposed Instruction No. 167
You are instructed that by incarcerating the de-
fendant for 13 months in 1945 and 1946 without
bringing charges against her, the United States de-
prived the defendant of her constitutional right to
a speedy trial and you must acquit the defendant.
Defendant’s Proposed Instruction No. 168
If you find that the defendant has been denied
a speedy trial by the actions of the United States
and that evidence material to the case has become
lost or unavailable in the meantime then you must
acquit the defendant.
U.S. v. McWilliams, 163 F 2d, 695, 696.
320 Iva Ikuko Togurt D’ Aquino
Defendant’s Proposed Instruction No. 169
If the evidence is such that it raises a reason-
able doubt in your minds as to whether the defend-
ant was accorded a speedy trial or whether a speedy
trial was denied her’ by the actions of the United
States or its officers, then you must acquit the de-
fendant.
Amendment VI, U. 8S. Constitution.
Receipt of a copy of the foregoing Defendant’s
Proposed Supplemental Instructions to Jury is
hereby admitted this 25th day of August, 1949.
FRANK J. HENNESSY,
U.S. Attorney.
TOM DE WOLFE,
Special Assistant to the
Attorney General.
/s/ JAMES W. KNAPP,
/s/ TOM DE WOLFE,
Per J.W.K.,,
Attorneys for Plaintiff.
Defendant’s Proposed Instruction No. 142
Tf you find that the defendant at the time of her
marriage to Philip d’Aquino, or at any other time, ©
made a formal declaration of allegiance to the Re-
public of Portugal, then she lost her American citi-
zenship as a result of such declaration.
vs. United States of America 321
Defendant’s Proposed Instruction No. 148
Questions as to whether or not a person is an
American citizen and his or her duty of allegiance
as such are determined in accordance with the law
of the United States. But whenever our laws in-
corporate by reference or adopt the laws of another
country, the foreign law thus adopted is to be con-
sidered the same as if a part of the law of the
United States. What the foreign law is—in this
ease the law of Portugal—is a question of fact to be
determined by the jury from the evidence, the same
as any other question of fact.
Defendant’s Proposed Instruction No. 145
If you find that Philip d’Aquino was a citizen of
Portugal at the time of defendant’s marriage to
him, then it is your duty to determine the law of
Portugal as to the effect of such marriage on de-
fendant’s citizenship from the testimony which has
been presented in court.
Defendant’s Proposed Instruction No. 146
If you find that under the law of Portugal, de-
fendant’s marriage to Philip d’Aquino constituted
naturalization into Portuguese citizenship, then the
defendant lost her American citizenship as a result
of said marriage.
Defendant’s Proposed Instruction No. 147
If you find that under the law of Portugal, de-
fendant’s marriage to Philip d’Aquino constituted
822 Iva Ikuko Toguni D’ Aquino
a formal declaration of allegiance to the Republic
of Portugal then the defendant lost her American
citizenship as a result of said marriage.
Defendant’s Proposed Instruction No. 148
If you find that defendant lost her American citi-
zenship as a result of her marriage, you are i1n-
structed that she cannot be guilty of treason be-
cause of any overt act occurring after the date of
said marriage, namely, April 19, 1945.
Defendant’s Proposed Instruction No. 149
If defendant at any time made a formal declara-
tion of allegiance to the Republic of Portugal, then
she cannot be found guilty of treason to the United
States for any act committed after the date of such
formal declaration.
Defendant’s Proposed Instruction No. 150
If you find that the defendant at any time ac-
quired Portuguese citizenship and lost her Ameri-
can citizenship it is your duty to find her not guilty
on all acts charged to have occurred at a date later
than defendant’s loss of her American citizenship.
Defendant’s Proposed Instruction No. 151
If you find that the defendant is a citizen of Por-
tugal you must find her not guilty.
vs. Umted States of America 323
Defendant’s Proposed Instruction No. 152
If you find that the defendant was a Portuguese
citizen during the times specified in the indictment,
you must find her not guilty.
Defendant’s Proposed Instruction No. 153
If you find that the defendant was a Portuguese
national or citizen at the time she was arrested in
Japan on or about August 26, 1948, by agents of
the U.S. and that she thereafter was transported to
the United States from Japan in September, 1949,
by agents of the U. S., you must return a verdict
of acquittal in her favor.
Defendant’s Proposed Instruction No. 154
You are instructed that the uncontradicted evi-
dence demonstrates that, by the law of Portugal, as
well as by the law of the United States, the defend-
ant lost her U.S. citizenship by virtue of the fact
and at the very time she married her husband on
April 19, 1945, in Tokyo, Japan, and that by that
marriage which was registered at the Portuguese
Consulate in Tokyo, Japan, in April or May, 1945,
and also by the registration thereof thereafter at
Lisbon, Portugal, she became exclusively a Portu-
guese national and citizen and since that time she
has not been subject to process of the United States
and she has not been subject to seizure in Japan by
agents of the U.S. and she has not been subject to
being brought here to be indicted in this cause.
324 Iva Ikuko Toguri D’ Aquino
Further, by the law of Portugal she became a Por-
tuguese subject, an exclusive Portuguese national
and citizen owing allegiance only to Portugal and
not to the U. S. Further, by reason thereof she
lost her U. S. nationality and from that time forth
owed no allegiance to the U. 8. and, since she was
not a citizen of the U. 8. on August 26, 1948, she
was not properly subject to seizure and transporta-
tion to the U. S. to be indicted.
These instructions have been refused by the
Court as not correct statements of the law, not
applicable to the evidence in this ease, or al-
ready covered by other instructions. Defend-
ant excepts to their refusal.
[Endorsed]: Filed October 6, 1949.
vs. United States of America SOA
District Court of the United States, Northern
District of California, Southern Division
At a Stated Term of the District Court of the
United States for the Northern District of Cali-
fornia, Southern Division, held at the Court Room
thereof, in the City and County of San Francisco,
on Thursday, the 6th day of October, in the year
of our Lord one thousand nine hundred and forty-
nine.
Present: The Honorable Michael J. Roche,
District Judge.
[ Title of Cause. ]
ORDER
(Minute order denying Motion for new trial,
Motion for acquittal or new trial, and Motion
in arrest of judgment. Sentence. )
This case came on regularly this day for judg-
ment, motion for new trial, motion for acquittal or
new trial, and a motion in arrest of judgment. The
defendant was present in the custody of the United
States Marshal and with her attorneys, Wayne Col-
lins, Esq., Theodore 'T'amba, Esq., and George Ols-
326 Iva Ikuko Toguri D’ Aquino
hausen, Esq. Tom De Wolfe, Esq., and James
Knapp, Esq., Special Assistants to the Attorney
General, and Hon. Frank J. Hennessy, U.S. Attor-
ney, were present on behalf of the United States.
After hearing the arguments of Mr. Olshausen and
Mr. De Wolfe, the above-mention motions were sub-
mitted to the Court for decision, and due considera-
tion having been had thereon, it is Ordered that the
Motion for a new trial, the Motion for acquittal or
new trial, and the Motion in arrest of judgment be,
and each of them, is hereby denied.
The defendant was called for judgment. After
hearing Mr. Collins and Mr. De Wolfe, It Is Or-
dered that the defendant Iva Ikuko Toguri d’Aqui-
no, for the offense of Treason Against the United
States of which said defendant stands convicted
by unanimous verdict of the jury, be committed to
the custody of the Attorney General or his author-
ized representative for imprisonment for a period
of Ten (10) Years and pay a fine to the United
States in the sum of Ten Thousand Dollars ($10,-
000.00).
It Is Ordered that judgment be entered herein
accordingly.
vs. United States of America SPA |
District Court of the United States for the Northern
District of California, Southern Division
Nos 31712. R
UNITED STATES OF AMERICA
vs.
IVA IKUKO TOGURI D’AQUINO.
JUDGMENT AND COMMITMENT
On this 6th day of October, 1949, came the attor-
ney for the government and the defendant appeared
in person and with counsel ;
It Is Adjudged that the defendant has been con-
victed upon her plea of not guilty and a verdict
of guilty of the offense of Treason (Title 18 U.S.C.,
Section 1) as charged in the Indictment and the
court having asked the defendant whether she has
anything to say why judgment should not be pro-
nounced, and no sufficient cause to the contrary be-
ing shown or appearing to the Court,
It Is Adjudged that the defendant is guilty as
charged and convicted.
It Is Adjudged that the defendant is hereby
committed to the custody of the Attorney General
or his authorized representative for imprisonment
for a period of Ten (10) Years and pay a fine to the
United States of America in the sum of Ten Thou-
sand Dollars ($10,000.00).
It Is Ordered that the Clerk deliver a certified
copy of this judgment and commitment to the
328 Iva Ikuko Togurt D’ Aquino
United States Marshal or other qualified officer and
that the copy serve as the commitment of the de-
fendant.
/s/ MICHAEL J. ROCHE,
United States District Judge.
/s/ J. P. WELSH,
Deputy Clerk.
Examined by:
/s/ TOM DE WOLFE,
Special Asst. to the U. S.
Attorney General.
Filed and entered this 6th day of October, 1949.
C. W. CALBREATH,
Clerk.
[ Title of District Court and Cause. ]
NOTICE OF MOTION FOR ADMISSION OF
THE DEFENDANT TO BAIL PENDING
APPEAL
To the Plaintiff Above Named and to Frank J.
Hennessy, U. 8S. Attorney, and to Tom De
Wolfe, Special Assistant to the Attorney Gen-
eral, Its Attorneys:
You and each of you will please take notice, that
on Monday, October 10, 1949, at the hour of 10:00
a.m. or as soon thereafter as counsel can be heard
in Room 338 of the Post Office Building at Sevy-
enth and Mission Streets, San Francisco, Califor-
nia, defendant will move the court for its order
vs. United States of America 329
admitting her to bail pending appeal. Said motion
will be made upon the ground that since the imposi-
tion of a prison sentence for a term of years, this
case does not now involve a possibility of capital
punishment and that the appeal of defendant is
taken in good faith and upon substantial grounds.
This notice is based upon all of the records and
files in this case, including particularly the tran-
script of the evidence and defendant’s Motion for a
New Trial Under Rule 33, Motion for Acquittal
or New Trial Under Rule 29 (b), Motion for Ar-
rest of Judgment Under Rule 34 and the Notice of
Appeal filed concurrently with this Notice of Mo-
tion.
/s/ WAYNE M. COLLINS,
/s/ GEORGE OLSHAUSEN,
/s/ THEODORE TAMBA,
Attorneys for Defendant.
Points and Authorities:
Rules of Criminal Procedure 38 (b), 46 (a) (2);
Rossi v. U. S., 11 Fed. (2d) 264; Hudson v. Parker,
eee WU. ©. 277, 286; Hanes v. U. 8., 299 Ped. 296;
McKnight v. U. 8., 113 Fed. 45; U. 8. v. Nardone,
106 Fed. (2d) 41; U. S. v. Motlow, 10 Fed. (2d)
657.. Some of the above cases arose under the old
rule substantially the same as the present rule. See
ma rule Vi, paragraph 2, 292 U. S. 61, 78 L.Ed.
1512, 1514.
Receipt of Copy attached.
[Endorsed]: Filed October 7, 1949.
330 Iva Ikuko Toguri D’ Aquino
[Title of District Court and Cause. ]
ORDER STAYING EXECUTION
Good cause appearing therefor, it is hereby or-
dered that the sentence and judgment imposed in
the above-entitled case on October 6, 1949, be and
the same is hereby stayed to and including October
17, 1949.
Dated: October 7, 1949.
/3/ MICHAEL J. ROCHE,
District Judge.
[Endorsed]: Filed October 7, 1949.
vs. United States of America 331
[Title of District Court and Cause. ]
AFFIDAVIT
United States of America,
Northern District of California,
City and County of San Francisco—ss.
Iva Ikuko Toguri d’Aquino, being first duly
sworn, deposes and says: that she is the defendant
in the above-entitled action; that she is an adult
female, over the age of twenty-one years of age,
a citizen of the United States of America by birth
and so declared in the above-entitled proceeding to
be a U.S. citizen, the party defendant in the above-
entitled proceeding; that she is an indigent; that
aside from used clothing and a few personal ef-
fects, the reasonable value of which does not exceed
Twenty-Five ($25.00) Dollars, she possesses the fol-
lowing assets only, viz: sundry household furniture,
dishes, trunk, one sewing machine and utensils of
the reasonable value of $100.00 (One Hundred Dol-
lars), said property being owned jointly with her
husband, Philip d’Aquino, and the same being sit-
uated in Tokyo, Japan; that she does not possess
any real property whatsoever save and except a
remote claim or right, subservient to the right of
the Attorney General as the Alien Property Cus-
todian, in and to certain real property situated in
Los Angeles County, California, described as. fol-
lows:
Lots 42 and 57 of the South Gate Tract in
the Rancho Tajauta, as per map recorded in
332 Iva Ikuko Toguri D’ Aquino
Book 18, Pages 14 and 15 of Maps in the office
of the County Recorder of said County, and
portion of the 538.28-acre tract of land allot-
ted to Jose Maria Abila in the partition of ~
Rancho Tajauta, Case Number 1200 of the 17th
Judicial District Court in the County of Los
Angeles.
Which said property she is informed and believes
has an approximate market value of Three Thou-
sand Five Hundred Dollars ($3,500.00), the interest
of the defendant therein, however, being at most a
disputable claim and hence of substantially no value
whatever to her.
' That because of her said indigency and poverty,
she is unable to pay the costs of the said action
and the appeal from the judgment of conviction
following the verdict and sentence of the court to
ten years’ imprisonment and to pay the $10,000
fine or any portion thereof which was imposed upon
her herein; that she believes she is entitled to the
redress she seeks in her appeal from the said judg-
ment of conviction of this court to the United States
Court of Appeals for the Ninth Circuit; that the
nature of said appeal is that said judgment should
be reversed on all of the grounds heretofore enum-
erated in the following motions filed after the ver-
dict: Motion for New Trial Under Rule 33, Motion
for Arrest of Judgment Under Rule 34, and Mo-
tion for Acquittal or New Trial Under Rule 29
(b). 7
vs. United States of America 333
Wherefore affiant prays for the order of this
Court waiving the costs and expenses aforesaid and
directing that the costs of said appeal and the ex-
pense of certifying and preparing and printing
the record on appeal herein be paid by the United
States and that the same be paid when authorized
by the Attorney General as provided by 28 U.S. C.
1915.
Dated: October 7, 1949.
/s/ IVA IKUKO TOGURI
d’AQUINO,
Affiant.
(Defendant and Appellant.)
Subseribed and sworn to before me this 7th day
of October, 1949.
[Seal] /s/ ERNEST BESIG,
Notary Public in and for the City and County of
San Francisco, State of California.
[Endorsed]: Filed October 7, 1949.
334 Iva Ikuko Toguri D’ Aquino
[Title of District Court and Cause. ]
ORDER DISPENSING WITH PAYMENT OF
FEES AND COSTS OF PRINTING REC-
ORD ON APPEAL
Upon reading and filing the affidavit in forma
pauperis of Iva Ikuko Toguri d’Aquino, defendant
and appellant in the above-entitled cause,
It Is Hereby Ordered that said defendant and
appellant may, without being required to prepay
fees and costs or for the printing of the record on
appeal herein, prosecute or defend to a conclusion
her appeal to the appellate court or courts herein,
and
It Is Hereby Ordered and Directed that the ex-
pense of printing the record on appeal herein be
paid by the United States, and that the same shall
be paid when authorized by the Director of the
Administrative Office of the United States Courts.
Dated: October 7, 1949.
/3s/ MICHAEL J. ROCHE,
U.S. District Judge.
[Endorsed]: Filed October 7, 1949.
[Title of District Court and Cause. ]
NOTICE OF APPEAL
The defendant above-named hereby appeals to
the United States Court of Appeals for the Ninth
vs. Umted States of America 339
Circuit from the judgment and sentence rendered
in the above-entilted case on October 6, 1949, which
judgment sentenced defendant to ten years in prison
and imposed a fine of $10,000. The defendant’s
present address is County Jail No. 3, Washington
and Dunbar Streets, San Francisco, California. De-
fendant’s attorneys are Wayne M. Collins, George
Olshausen and Theodore Tamba, all of whom have
as their address for the purposes of this case Room
1701 Mills Tower, 220 Bush Street, San Francisco,
California. In addition, the latter two attorneys
have general separate addresses as follows: George
Olshausen, 280 Union Street, San Francisco 11,
California; Theodore Tamba, 68 Post Street, San
Francisco 4, California.
Defendant is now confined in San Francisco
County Jail No. 3, the same address stated above.
The offense with which defendant is charged is
violation of 18 U.S.C. 1, treason. Specifically, it is
charged that during the war between the United
States and Japan from 1941 to 1945, defendant gave
radio broadcasts over Radio Tokyo on behalf of the
Imperial Japanese Government.
/s/ WAYNE M. COLLINS,
/s/ GEORGE OLSHAUSEN,
/s/ THEODORE TAMBA,
Attorneys for Defendant.
[Endorsed]: Filed October 7, 1949.
336 Iva Ikuko Toguri D’ Aquino
District Court of the United States, Northern Dis-
trict of California, Southern Division
At A Stated Term of the District Court of the
United States for the Northern District of Cali-
fornia, Southern Division, held at the Court Room
thereof, in the City and County of San Francisco, on
Monday, the 10th day of October, in the year of
our Lord one thousand nine hundred and forty-nine.
Present: The Honorable Michael J. Roche,
District Judge.
[Title of Cause. ]
MINUTE ORDER DENYING MOTION FOR
BAIL PENDING APPEAL
This case came on regularly this day for hearing
on motion for bail pending appeal. Defendant was
present with her attorney, Geo. Olshausen, Esq.
Hon. Frank J. Hennessy, United States Attorney,
and Tom DeWolfe, Esq., Special Assistant to the
Attorney General, were present for the United
States. After hearing the arguments of Mr. Ols-
hausen and Mr. DeWolfe, it is Ordered that said
motion for bail pending appeal be denied.
vs. United States of America 5 oil
RE EACH OF THE FOLLOWING
DEPOSITIONS
(Answers to questions to which objections
were sustained are shown in_ parenthesis.
Where part of an answer was read before
objection, or before the court’s ruling, this
part is shown without parenthesis and later
the full answer in parenthesis. )
In the Southern Division of the United States
District Court for the Northern District of
California
Nowsl 12k
UNITED STATES OF AMERICA,
Plaintiff,
VS.
IVA IKUKO TOGURI D’AQUINO,
Defendant.
DEPOSITION OF GEORGE NODA
Deposition of George Noda, taken before me,
Thomas W. Ainsworth, Vice Consul of the United
States of America, in Mitsui Main Bank Building,
Room 335, in Tokyo, Japan, under the authority
of a certain stipulation for taking oral designations
abroad, and upon order of the United States Dis-
trict Court, made and entered March 22, 1949, in
the Matter of United States of America vs. Iva
Ikuko D’Aquino, pending in the Southern Division
338 Iva Ikuko Toguri D’ Aquino
of the United States District Court, for the North-
ern District of California, and at issue between the
United States of America vs. Iva Ikuko Toguri
D’ Aquino.
The plaintiff appearing by Frank J. Hennessy,
United States District Attorney; Thomas DeWolfe,
Special Assistant to the Attorney General, and Noel
Story, Special Assistant to the Attorney General,
and the defendant, appearing by ease N. Collins
and Theodore Tamba.
The said interrogations and answers of the wit-
ness thereto were taken stenographically by Irene
Cullington and were then transcribed by her under
my direction and the said transcription being there-
after read over correctly to said witness by me and
then signed by said witness in my presence.
It is Stipulated that all objections of each of the
parties hereto, including the objections to the form
of the questions propounded to the witness and to
the relevancy, materiality and competency thereof,
and the defendant’s objections to the use of the
deposition, or any part of the deposition, by plain- _
tiff, on the plaintiff’s case in chief, shall be reserved
to the time of trial in this cause. -
vs. Umted States of America 339
GEORGE NODA
of Tokyo, Japan, an economic adviser to GHQ,
SCAP, of lawful age, being by me first duly sworn,
deposes me says:
Direct Examination
By Mr. ‘T'amba:
Q. Mr. Noda, what is your full name?
A. My name is George Noda.
Q. Where do you reside, Mr. Noda?
A. My present address is c/o Mrs. Sekine, 88-3
Ikegami Tokumochi Ota-Ku, Tokyo-To.
@. Are you married or single, Mr. Noda?
A. Iam single.
Q. What is your business or occupation ?
A. Presently I am employed by Price and Dis-
tribution Division, ESS, GHQ, SCAP, in the ea-
pacity of economic advisor.
@. And you are a citizen and national of what
country ?
A. Jama citizen and national of Japan.
@. Were you ever employed by Radio Tokyo?
A. I was.
Q. When were you employed there?
A. From December, 1942, through September,
1943. My job was officially terminated because of
my entry into Kyushu Imperial University. How-
ever, I returned from my trip to Kyushu, I believe
340 Iva Ikuko Togurit D’ Aquino
(Deposition of George Noda. ) :
in October, and I spent the month of [2*] Novem- »
ber in and around Tokyo and I spent most of the ©
time at Radio Tokyo.
Q. You were in and about the studio in the
month of October, 1943?
A. I believe more in November.
Q. Were you there during the month of Decem-
ber, 1943? A. No, I wasn’t.
Q. Do you know the defendant, Iva D’Aquino.
A. I do.
Q. When did you first meet her?
A. I met her some time before she started work-
ing for Radio Tokyo.
Q. Did you see her in and about the premises
known as Radio Tokyo? A. Yes.
@. When did you see her?
A. Before she started working she used to come
up every so often to visit friends and then I saw
her in November, 1943.
Q. Did you ever see her occupied as a typist?
A. No, but I heard she had been during my trip
down to Kyushu.
Q. Were you familiar with the program known
as the ‘‘Zero Hour.”’’
A. When I was working there it was a very
short program, about 15 minutes.
(). Who were the personnel on the program at
that time?
* Page numbering appearing at bottom of page of original
Reporter’s Transcript.
vs. Umited States of America 341
(Deposition of George Noda.)
A. Mr. Norman Reyes and/or Mr. Ted Wallace
ince.
Q. Anyone else? A. At that time, no.
Q. Now do you recall about the time she started
on the program, you say it was November, 1943, is
that correct?
A. It must have been, because she wasn’t work-
ing on that program when I left in September.
Q. Now, what part did she take on the program,
if you know?
A. She was introducing records. [3]
). How was she introducing these records, was
it from prepared script?
A. I saw her reading from script.
Q. Do you know who prepared that script for
her ?
A. I didn’t ask her; I don’t remember asking,
but from my knowledge of the operations of Radio
Tokyo at that time, I think I would be quite correct
in saying that it was either Mr. Norman Reyes, Mr.
Wallace Ince or Mr. Cousens.
Q. Do you know of your own knowledge that
either Cousens, Ince or Reyes prepared script for
that program ? &® Yes) Ido.
Q. You say you saw Mrs. D’Aquino broadeast,
is that correct? A. Yes.
@. Will you tell us what kind of broadcasting
she did; describe her to us.
A. My opinion as to her ability as an announcer
is that she was very poor. I was very surprised
342 Iva Ikuko Togurt D’ Aquino
(Deposition of George Noda.)
that anybody had qualified her for that position;
her voice was deep and cracked; her speech jerky.
Q. Was she fluent? Ae Sto:
Q. That is the kind of broadcasting you heard
while you were there? A. ‘That is right.
Q. Were there any other woman broadcasters
while you were there?
A. Yes, Miss June Suyama; iifies Ruth Ha-
yakawa, and every so often Katherine Morooka.
Q. Any others that you can recall at this time?
A. No.
Q. Of the three girls that you mention, which of
the three took part in the ‘‘Zero Hour’ program?
A. I think, Miss Morooka. [4]
Q. What part did Ruth Hayakawa take in the
Zero Hour program?
A. I don’t remember her having any part in
the ‘‘Zero Hour’’ program.
Q. How about June Suyama?
A. I don’t think she had any part.
@. What did she do?
A. Miss Suyama was, at that time, one of the
best announcers in Radio Tokyo. She handled news
broadcasts; sometimes read commentaries. She
worked mostly from 8 to 5.
Q. Where is she, if you know, at the present
time ?
A. Miss Suyama, I heard, was killed by a truck.
Q. Now do you know of any PWs being slapped
vs. United States of America 343
(Deposition of George Noda.)
by any army officer around Radio Tokyo while you
were there?
Mr. DeWolfe: Object to that as incompetent,
irrelevant and immaterial, too remote.
The Court: Read it again please.
(Question reread by Mr. Collins.)
The Court: I will allow it. The objection is
overruled.
A. It was common knowledge in Radio Tokyo
that when Major Cousens was first brought in to
Radio Tokyo, by, I believe, Japanese officer named
Major Muto, and he refused to follow instructions
given by Major Muto, that he was slapped and
humiliated.
The Court: Let that question and answer go
out and let the jury disregard it for any purposes
of this case. |
Q. What time of the day did the Zero Hour come
on, Mr. Noda? A. It was from 6 to 7.
Q. You left the radio station and went into the
army, is that correct?
A. In September when I resigned, I resigned
because I had been permitted entry into Kyushu
Imperial University. I had to go down to Kyushu
to continue my studies. About a month after I got
down there, I was informed that I was being drafted
into the Japanese Army and I had to return in’
October to take my physical examination.
Q. You told us that before. While you were in
344 Iva Ikuko Toguri D’ Aquino
(Deposition of George Noda. )
the Japanese Army, where were you stationed?
A. Iwas in Japan.
Q. Let me ask you. Can you tell us when the
air raids commenced [5] in this area, if you recall,
the month and year?
A. The air raids started around February, 1945,
and grew worse and worse through March and
April. Some of the specific dates I remember are
March 9, April 14 and 15.
@. You have appeared voluntarily as a witness
for this defendant? A. I have.
(). Have you been interviewed by anyone else
other than me about this case?
A. No. I was interviewed by CIC.
@. When was that?
A. /That was in late 1945.
Q. I think that is all.
Cross-Examination
By Mr. Story:
@. Where were you born?
A. I was born in Victoria, B. C., Canada.
(. Did you ever live in the United States?
A. No.
@. Were you ever in the United States?
A. Yes.
@. For how long?
A. About four hours. I took one of those short
trips to Seattle and returned the same day.
Q. How many times did you see Miss Toguri at
the microphone broadcasting at Radio Tokyo?
vs. United States of America 345
(Deposition of George Noda.)
A. About three times.
Q. You mentioned a moment ago that you had
been interviewed by the CIC? A. Yes.
Q. When was that? A. Late in 1945.
Q. Did you sign a statement?
A. I don’t remember. [6]
Q. Do you recall at the time you were inter-
viewed by the CIC that you told them you saw Miss
Toguri at the microphone only one time and that
you did not know whether it was a voice test or
broadcast. :
A. Iam sorry; I don’t have any recollection of
the statements I made; whether I signed any state-
ment or not. All I remember is that I spoke to a
CIC agent about Miss Toguri.
Q. Then you don’t really know how many times
you did see Miss Toguri at the radio station ?
A. Ido know it was more than once.
Q. Was she broadcasting or making a voice
test ?
A. I know definitely on one oceasion she was
broadeasting. :
Q. Then the statement you made.to the CIC
is not a true statement?
A. I don’t know what statement I made——
Mr. Collins: Just a moment, Mr. Tamba. I
object to that as examining something not in evi-
dence, and on the further ground that no founda-
tidn has been laid and the further ground that it
is argumentative and the further ground——
346 Iva Ikuko Toguri D’ Aquino
(Deposition of George Noda.)
The Court: The objection is sustained; proceed.
(A. I don’t know what statement I made to the
CIC.)
Q. What were you doing when you came back
from the University to Tokyo?
A. I was visiting. Well, actually, I was spend-
ing my last month as a civilian and sae to enjoy
myself.
Q. Had you resigned from the University at
that time?
A. No, there wasn’t a definite resignation, or
whatever you wish to call it, but they had a system
whereby everybody who was drafted, and most
college students were at that time, was put on tem-
porary leave, let us say, for the duration.
Q. In other words, you are telling us that you
left here in September to enroll in the University?
A. That is right. —
Q. That you enrolled in the University in Sep-
tember and came back to Tokyo and stayed here
during the months of October and November ?
A. I believe I said I came back in October and
that it was November that I actually spent in Tokyo.
Q. When were you drafted ?
A. I was drafted on December 1
Q. Of your own knowledge, do you know who
prepared the scripts that you saw Miss Toguri
read at the radio station?
A. I did not see who did it.
vs. United States of America 347
(Deposition of George Noda. )
Q. So you don’t know of your own knowledge
who wrote the seripts?
A. I don’t know, yes. I have seen, with my own
eyes, Norman Reyes, Ted Wallace, and Cousens pre-
pare scripts. I don’t know definitely whether they
prepared the scripts used by Miss Toguri.
(Q. Were you present when prisoners of war
working at the radio station were mistreated ?
A. No, I wasn’t.)
Q. Then of your own knowledge you do not
know
Mr. Collins: I ask that that might be stricken
out as calling for the opinion and conclusion of the
witness and the further ground that no foundation
has been laid, and on the further ground that it
was Improper cross-examination, and Your Honor
has made a ruling on the prior question covering
that.
The Court: Read the question Mr. Reporter.
Mr. DeWolfe: Excuse me, Your Honor, maybe
we can obviate it. I think his objection is proper.
The direct examination was excluded on that same
point. .
The Court: The objection will be sustained.
Mr. DeWolfe: I will confess the propriety of
the objection. And the next question and answer,
with the consent of counsel, may likewise be de-
leted, because it deals with the same point.
The Court: So stipulated 2
Mr. Collins: No, you ma
?
e
e
348 Iva Ikuko Togurt D’ Aquino
(Deposition of George Noda.)
Mr. DeWolfe: Starting at line 12, ‘‘Then, of
your own knowledge——?”’
Mr. Collins: No, I can’t, because I don’t think
that was stricken out. This is as to the voice test.
(Conversation between Messrs. DeWolfe and
Collins out of hearing of reporter.)
Mr. DeWolfe: Right here (Indicating).
Mr. Collins: Oh yes, that goes out, that is from
line 9 to and including line 14; it may go out.
The Court: Very well, it may go out. Let the
record so show.
Mr. Collins: Page 8.
(Q. Then, of your own knowledge, you don’t
know if anybody was mistreated ? A. Gow
Mr. Tamba: Mr. Noda, do you recall that I
asked you yesterday whether Mrs. D’Aquino was
taking a voice test with Major Cousens, Lt. Nor-
man Reyes and you being present in the room at
that time.
A. I can’t remember anything distinctly as to a
voice test for Miss Toguri.
Q. But you remember her speaking over the
Microphone? A. Yes.
How old are you, Mr. Noda?
I am 26 years old.
When did you come to Japan from Canada?
In the summer of 1936.
What was your age at that time?
Thirteen.
POPOP®
us. United States of America 349
(Deposition of George Noda.)
@. And you have remained here ever since?
A. Yes. [8]
/s/ GHORGE NODA.
Japan,
City of Tokyo,
American Consular Service—ss:
I do solemnly swear that I will truly and im-
partially take down in notes and faithfully tran-
scribe the testimony of George Noda, a witness now
to be examined. So help me God.
/3s/ IRENE CULLINGTON.
Subseribed and sworn to before me this fifteenth
day of April A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the United
States of America.
[ American Consular Service Seal. |
Service No. 566a; Tariff No. 38; No fee pre-
scribed.
Japan,
City of Tokyo,
American Consular Service—ss:
CERTIFICATE
I, Thomas W. Ainsworth, Vice Consul of the
United States of America in and for Tokyo, Japan,
duly commissioned and qualified, acting under the
authority of a certain stipulation for taking oral
300 Iva Ikuko Toguri D’ Aquino
designations abroad, and upon order of the United
States District Court, made and entered March 22,
1949, in the Matter of United States of America,
Plaintiff, vs. Iva Ikuko Toguri D’Aquino, Defend-
ant, pending in the Southern Division of the United
States District Court, for the Northern District of
California, and at issue between United States of
America vs. Iva Ikuko Toguri D’Aquino, do hereby
certify that in pursuance of the aforesaid stipula-
tion and court order and at the request of Theodore
Tamba, counsel for the defendant Iva [kuko Toguri
D’Aquino I examined George Noda, at my office in
Room 335, Mitsui Main Bank Building, Tokyo,
Japan, on the fifteenth day of April, A.D. 1949, and
that the said witness being to me personally known
and known to me to be the same person named and
described in the interrogatories, being by me first
sworn to testify the truth, the whole truth, and
nothing but the truth in answer to the several in-
terrogatories and cross-interrogatories in the cause
in which the aforesaid stipulation, court order, and
request for deposition issued, his evidence was taken _
down and transcribed under my direction by Irene
Cullington, a stenographer who was by me first
duly sworn truly and impartially to take down in
notes and faithfully transcribe the testimony of the
said witness George Noda, and after having been
read over and corrected by him, was subscribed by
him in my presence; and I further certify that
I am not counsel or kin to any of the parties
to this cause or In any manner interested in the
result thereof.
vs. United States of America 301
In witness whereof, I have hereunto set my hand
and seal of office at ‘Tokyo, Japan, this 30th day of
April, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the United
States of America.
[American Consular Service Seal]
Service No. 707; Tariff No. 38; No fee prescribed.
[ Endorsed]: Filed May 5, 1949.
In the Southern Division of the United States
District Court for the Northern District of
California .
io. o lh ee
UNITED STATES OF AMERICA,
Plaintiff,
VS.
IVA IKUKO TOGURI D’AQUINO,
Defendant.
DEPOSITION OF LILY GHEVENIAN
Deposition of Lily Ghevenian, taken before me,
Thomas W. Ainsworth, Vice Consul of the United
States of America, in Mitsui Main Bank Building,
Room 335, in Tokyo, Japan, under the authority of
a certain stipulation for taking oral designations
abroad, and upon order of the United States Dis-
352 Iva [kuko Toguri D’ Aquino
trict Court, made and entered March 22, 1949, in
the matter of United States of America vs. Iva
Ikuko Toguri D’Aquino, pending in the Southern
Division of the United States District Court, for the
Northern District of California, and at issue be-
tween the United States of America vs. Iva Ikuko
Toguri D’Aquino.
The plaintiff appearing by Frank J. Hennessey,
United States District Attorney; Thomas DeWolfe,
Special Assistant to the Attorney General, and
Noel Story, Special Assistant to the Attorney Gen-
eral, and the defendant, appearing by Wayne N.
Collins and ‘Theodore 'Tamba.
The said interrogations and answers of the wit-
ness thereto were taken stenographically by Marion
A. Peterson and were then transcribed by her under
my direction, and the said transcript being there-
after read over correctly to said witness by me was
then signed by said witness in my presence.
It is stipulated that all objections of each of the
parties hereto, including the objections to the form
of the questions propounded to the witness and to
the relevancy, materiality and competency thereof,
and the defendant’s objections to the use of the
deposition or any part of the deposition, by plain-
tiff, on the plaintiff’s case in chief, shall be reserved
to the time of trial in this cause..
- us. United States of America 303
LILY GHEVENIAN
of Tokyo, Japan, employed at GHQ, SCAP, of law-
ful age, being by me first duly sworn, deposes and
says:
Questions propounded by Mr. Tamba:
Q. Your name is Lily Ghevenian?
A. Yes.
@. Were you ever known by any other name?
A. Yes; Lily Sagoyan.
. Where do you reside? A. In Tokyo.
@. How long have you resided in Tokyo?
A. I was born here.
(). What is your nationality?
A. Stateless.
Q. Will you explain?
A. My father was Armenian and my mother was
Japanese.
@. Where and with whom are you employed?
A. GHQ, in Tokyo.
Q. Do you know Iva: Toguri, also known as Iva
D’ Aquino ? A. Yes.
(). And when did you first meet her?
A. The latter part of 1948.
@. Were you ever employed by Radio Tokyo?
x. Yes:
@. Over what period of time did that employ-
_ ment continue?
A. From latter 1943 until September, 1945.
Q. What were your duties at Radio Tokyo?
m.
Typist.
354 Iva Ikuko Togurt D’ Aquino
(Deposition of Lily Ghevenian. )
Q. Did you work steadily from 1943? [2*]
A. Yes.
Q. What were your hours per day?
A. Every other day from 8 to 5; mght shift
from 12 noon to 8 p.m.
Q. How many days per week?
A. Five and one-half days per week.
Q. Was Miss Toguri employed by Radio Tokyo?
A. Yes, she was.
Q. What work did she do when she first started
there ?
A. She was there before I was; — I came, she
was broadcasting.
Q. Was Miss Toguri ever employed as a typist?
A. I don’t know.
Q. Did you know what her hours of employment
were ? |
A. Early in the evening; she went home righ
after the broadcast.
Q. Did you have occasion to type any seripts
for her? A. I did. \
Q. Do you know who prepared that script for
her? A. I don’t know.
@. Who brought the script to you to be typed?
A. Ken Oki or Miss Toguri.
@. What program did Miss Toguri broadcast?
A. The Zero Hour.
Q. Do you know how many days a week Miss
Toguri worked at the radio station ?
* Page numbering appearing at bottom of page of original
Reporter’s Transcript.
vs. United States of America 355
(Deposition of Lily Ghevenian. )
A. She was sick quite a while; she was supposed
to have worked six days a week.
Q. Do you recall when Miss Toguri was sick,
approximately? If you don’t know, say so.
A. I don’t know the exact date, but she was
away a long time when Cousens was away.
@. Do you remember when Cousens was away?
ma. Wo, I*don’t.
(). How long would these absences be, a week,
or two, or three? A. It was weeks. [3]
@. Now, when this script was delivered to you
for Miss Toguri’s program, how was it i lal
A. It was typewritten.
@. What kind of paper was it on?
' A. Tussue paper—onion skin sheets.
Q. Then what would you do with this?
A. I made six or seven copies to be distributed.
Q. Do you know what became of the original?
A. Either Miss Toguri or Ken Oki took it back.
Q. Did you ever see the original of that script
again ? A. No, I never did.
@. And you have testified that you did not know
who prepared the script? A. Yes.
Q. When was that seript brought to you?
A. About anywhere between 5 and 6 p.m.; some-
times Miss Toguri brought them in at the last
minute.
Q. Do you know when the Zero Hour was broad-
east? A. It was 6 p.m.
306 Iva Ikuko Toguri D’ Aquino
(Deposition of Lily Ghevenian. )
Q. Was the script brought to you before the
broadcast ?
A. A few times it was brought in afterwards.
Q. How long was that Zero Hour program?
A. I think it was from 6 to 6:30.
Q. Did you ever listen to the Zero Hour pro-
gram? is, “Yesmiedic:
Q. Did you ever listen to Mrs. D’Aquino broad-
cast ? A. Yes, I did.
Q. What did she broadcast, if you remember?
A. She broadcasted music introductions.
Q. Did you ever hear Mrs. D’Aquino discuss
the nature or the quality of that program with
anyone? A. I do not know.
Q. Did you ever hear Mrs. D’Aquino broadcast
a motion picture involving war? [4]
A. I do not remember.
@. Did you ever hear Mrs. D’Aquino speak or
broadeast into a microphone, referring to the
enemies of Japan? A. No, I haven’t.
(). Did you ever see her prepare a script re-
garding the loss of ships? A. No, I haven’t.
Q. Did you ever hear her broadcast anything
regarding the high cost of living in the United
States ? A. No, I have not.
@. Or anything regarding soldiers in the South
Pacific suffering from jungle rot and malaria ?
A. Not that I remember.
Q. Did you ever hear her broadcast anything
about the unfaithfulness of wives left at home?
vs. United States of America aot
(Deposition of Lily Ghevenian. )
A. No, I did not hear it.
Q. Or prostitution existing in the United States,
in the factory areas of the United States?
A. No, I did not hear that.
Q. Miss Ghevenian, do you remember an oc-
casion on the Zero Hour program when the pro-
gram was interrupted for a flash news item, regard-
ing the fall of Saipan?
A. Not the exact date, but I remember such an
incident.
Q. What happened ?
A. They broadcast ‘‘Stars and Stripes Feat
@. What happened around the radio station
after that?
A. Everyone made a fuss about that and nat-
urally didn’t like it.
Q. Do you know what the Kempeitai was during
the war? ie Wiese 1 dio:
Q. What was the Kempeitai ?
A. They were the gendarmes.
Q. Did you ever suspect that you were being
watched by the Kempeitai? A. Yes. [5]
@. Were you ever apprehended by the Kempei-
tai? A. No, I have not.
Q. I mean outside of the radio station ?
A. I was caught in Yokohama once.
Q. Under what circumstances were you caught?
A. I did not have a pass to go there.
Q. Were you detained by the Kempeitai on that
occasion ? A. Just for about five minutes.
308 Iva Ikuko Togurt D’ Aquino
(Deposition of Lily Ghevenian. )
Q. Then you were released? A. Yes.
Q. Whom did you suspect might be Kempeitai
agents in Radio Tokyo?
Mr. DeWolfe: Objection to that as incompetent,
irrelevant and immaterial, calling for the conclusion.
The Court: The objection will be sustained.
(A. Buddy Uno and Ruth Hayakawa, and some
other people I don’t know their names.)
Q. Were you conscious of the fact that you were
being watched? A. Yes, I was.
Q. Did you ever have a discussion with Iva
D’Aquino, regarding Kempeitai’s following you or
her or both of you?
A. I remember once telling her I was watched
by the Kempeitai. .
@. What did she say to you?
A. I don’t remember.
Q. Who was on the Zero Hour program—l
mean, what was the cast, if you know?
A. Ken Oki, Norman Reyes and Iva Toguri, and
Charles Cousens, and I don’t remember the rest.
Q. Do you remember any other girls on the
program, besides Miss Toguri?
A. In the last part—toward the end of the war,
Mrs. Oki, or Mieko Furuya—she used to take her
parts when Iva was not there.
Q. Do you know of any other girls who might
have taken Iva’s parts? A. I do not.
Q. Do you know Mary Ishii?
A. I know Mary.
vs. United States of America 359
(Deposition of Lily Ghevenian. )
Was she on that program ?
I don’t know. [6]
What did Mr. Nakamoto do on the program?
I think he was in charge of the program.
What did Mr. Oki do on the program?
He broadcasted news.
Miss Ghevenian, you’ve heard me mention
certain things regarding the broadcast of loss of
ships, malaria, high cost of living, prostitution,
etc.—did any of the scripts handed to you by Miss
Toguri contain any reference to such things?
A. No.
@. Are you sure of that? A. Yes.
Q@. Why?
A. Because if there was such an item in it, I
would have discussed it with another typist.
Q. Who was that typist?
A. Mary Higuchi.
Q. Did you ever have any discussion with Mrs.
Oki during the times she substituted for Miss
Toguri? “A. That's rieht.
©. How did she act?
A. She acted very proud of the fact that she
was substituting for Miss Toguri.
Q. Miss Ghevenian, did Iva D’Aquino ever dis-
cuss the war with you, or the outcome of the war?
A. Yes, she has.
@. What did she say on those occasions ?
A. She used to tell me America would never
lose. She said if you watch American boys play-
OPOoPpe Pe
360 Iva Ikuko Toguri D’ Aquino
(Deposition of Lily Ghevenian. )
ing footabll, you know that they’ll fight to the last
man.
The Court: We will now take a recess until
two o’clock. The jurors may be excused.
(Thereupon a recess was taken until 2 p.m.
this day.)
Q. In any of her discussions with you, was she
pro-Japanese ? A. No, she was not.
@. Did she ever express her feelings regarding
the Japanese? [7]
A. She did not like them.
Mr. DeWolfe: I move to strike that as not
responsive.
The Court: Let it go out and let the jury dis-
regard it. a
Q. Did you ever know of occasions when Miss
Toguri took food to Prisoners of War?
A. I did not know it at that time, but I learned
afterwards. ,
Q. What did she do in order to get the food
there?
Mr. DeWolfe: I object to that as hearsay, sir,
because of the last answer. The answer before that
question was: ‘‘I did not know it at that time but I
learned afterwards.”’
The Court: Submitted?
Mr. Collins: Yes.
The Court: The objection is sustained.
Mr. Collins: The prior question, if your honor
vs. United States of America 361
(Deposition of Lily Ghevenian. )
please, related to ‘‘Did she ever express her feel-
ings?’’, and the answer that was stricken was, ‘‘She
did not like them.’’ This question is, ‘‘ Did you ever
know of occassions when Miss T'oguri took food to
prisoners of war?’’ ‘Answer: I did not know it at
the time, but I learned afterwards.’’
The Court: What she learned afterwards is
hearsay.
‘*Q. Where did you learn that?”’
‘fA. From Ruth Hayakawa.”’
Mr. DeWolfe: I object to that as hearsay, in the
same manner.
The Court: Let it go out and let the jury dis-
regard it.
(A. She had to escape from the Kempeitai. )
@. Where did you learn that?
A. From Ruth Hayakawa.
Q. Do you know a man by the name of Ken
Oki? A. Yes.
Q. Did you ever have a discussion with Mr. Oki
after his return from the United States, where he
was supposed to have testified against Miss Toguri
before a United States Grand Jury?
A. Yes, I have talked to him afterwards.
Q@. What was said to you by him on those oc-
casions ?
A. He said he had a ‘‘good time’’ and ‘‘Why
don’t you have a free ride to the United States
too?’’
Q. What did you say to him?
362 Iva Ikuko Togurt D’ Aquino
(Deposition of Lily Ghevenian. )
A. Isaid I do not want to go on a free ride.
Q. Miss Ghevenian, were there other girls, who
broadeast on other programs while you were there?
A. Yes.
Q. Do you recall the names of any of those girls?
A. June Suyama, Ruth Hayakawa, Kathleen
Fujiwara and Mrs. Oki.
Q. Do you remember a girl, who used to broad-
east on the German Hour program?
Yes, I do.
Who was she? A. Yoneko Matsunaga.
Where is that girl today ?
’ The last I heard, she was in New Jersey.
What has become of June Suyama?
I recently heard she was killed in a car
accident. [8]
Q. Do you know when the German Hour pro-
gram was broadcast?
A. It was right after the Prisoners’ Hour.
Q. Did this girl resemble Miss Toguri in stature
or features? A. I do not know.
rPOoOPrPOO
Cross-Examination
By Mr. Story:
@. These scripts that you typed for Miss To-
guri—how did they come to you; were they typed
or handwritten ?
A. Always typewritten.
Q. Did Miss Toguri ever tell you that she wrote
some of her scripts ? A. No, she never did.
vs. United States of America 363
(Deposition of Lily Ghevenian. )
Q. When did Mr. Cousens leave the radio sta-
tion ? A. I do not know.
Q. Will you give us your best recollection—was
it in 1943, 1944 or 1945?
A. I believe it was around 1944.
Q. Now, approximately when in 1944?
A. I do not remember.
Q. Now, you mentioned that Miss Toguri was
away from the radio station for some weeks. Was
this the only time she was away for any extended
time? A. No, she was away another time.
Q. When was Miss Toguri away the first time
you mentioned ?
A. That was when Cousens was away in the
hospital.
Q. Could that have been in the Spring of 1945?
A. I don’t remember.
Q. Now, the other time that you referred to
when Miss Toguri was away from the station—how
long was she away from the station?
A. Approximately three weeks.
@. Can you give us the date of that absence?
A. I cannot, but that was the time she got
married.
Q. Where was your office located with reference
to the broadcasting studio?
A. The broadcasting studio was on the first floor
and I believe it was the third floor where we were.
Q. Did you have any official duties at all on the
first floor? [9] A. No.
364 Iva Ikuko Togurt D’ Aquino
(Deposition of Lily Ghevenian. )
Q. Then it is quite possible that Miss Toguri
could have been there all the time?
A. On those occasions, it was usually somebody
else broadcasting. I know, because the voice that |
came through the monitor was not hers.
Q. Was there a monitor—speaker—in your of- .
fice?
A. Yes, there was. There was one all over the
building.
Q. Was this speaker on on times when the Zero
Hour was being broadeast ?
A. It was on all day and night.
Q. Did this noise disturb the girls in the typing
pool ? A. No, it didn’t—it wasn’t on so loud.
Q. You have testified that during the time you
worked at the radio station, one day you would
work from 8 to 5 in the afternoon and on the other
day you would work from 12 noon to 8 p.m. Was
this year schedule all the time you worked at the
station ?
A. We took the afternoon shift every other day
and on Sundays we took turns.
Q. Did you have any official capacity in monitor-
ing the program? A. No, I did not.
Q. You testified that Miss Toguri was ill and
away from the station. after Major Cousens left—
you have testified, for some weeks—approximately
how many weeks? Could it have been two weeks?
A. I don’t know.
vs. United States of America 365
(Deposition of Lily Ghevenian. )
Q. Could you give us your best recollection as to
how long it was?
A. I should say about a month and a half.
Q. Were you ever actually present in the radio
studio, when the Zero Hour program was being
broadcast?
A. No, I have never seen Zero Hour being
broadcast.
Q. Then, so far as you know, your only knowl-
edge of the Zero Hour and the people who par-
ticipated in it were the voices through the monitor?
im. That’s righé.
Q. Did any other typists in the typing pool ever
type a script for the Zero Hour? [10]
A. Yes.
Q@. What other typists typed the Zero Hour
program scripts at times?
A. Anyone who had the time or who was free
did them—or who didn’t have a definite assignment
to type for one person.
Q. Approximately what percentage of the scripts
did you type for the Zero Hour, ten per cent, fifteen
per cent? A. Just a very few.
Q. You made reference in you direct testimony
to the playing of the Stars and Stripes Forever
after the fall of Saipan. Was Miss Toguri respon-
sible for the playing of Stars and Stripes Forever
at that time? A. Ido not know that.
Q. Do you know who played Stars and Stripes
Forever?
366 Iva Ikuko Toguri D’ Aquino
(Deposition of Lily Ghevenian. ) )
A. George Ozasa. |
Q. In your direct examination you said— —
‘Just a minute. I think the next questions on cross- |
examination relate to direct examination that was ©
not allowed to be read.
The Court: It is stipulated 1t may be deleted. |
Mr. DeWolfe: There is quite a bit of it. The
next two items went out on direct examination and :
we are trying to enter into an agreement as to what —
portion of this we will skip as being pertinent to —
the part that was not read on direct examination. —
The Court: Proceed, I will rule.
Mr. DeWolfe: I want to skip to page 12, line 5
because the matters in between that and what I last
read concern a question on direct examination that
was not read.
Mr. Collins: From line 14, page 11, down to and
including line 4 on page 12.
The Court: It may go out.
Mr. DeWolfe: Yes, sir.
The Court: So stipulated.
Mr. Collins: I am not consenting that it go out.
JI am simply not opposing the objection made to
that by Mr. DeWolfe on the ground that it is not
proper cross-examination.
Mr. DeWolfe: JI do not press that cross-exami-
nation because it related to matters objected to
which was sustained on direct examination. There-
fore I don’t think it is necessary to read it. I ask
that it go out of the record.
us. United States of America 367
(Deposition of Lily Ghevenian.)
The Court: So stipulated?
Mr. Collins: I do not stipulate, if Your Honor
please. I mean after objection is made I think Your
Honor did make such a ruling.
The Court: Proceed.
(Q. In your direct examination, you said you
suspected Mr. Uno of being a Kempeitai agent.
Do you know definitely whether he was a Kempeitai
agent ? A. No.
@. In your direct examination, you said you
suspected Ruth Hayakawa of being a Kempeitai
agent. Do you know definitely whether she was a
Kempeitai agent?
A. I have learned since that she was not.
Q. Have you heard since that Mr. Uno was not?
A. Yes, I have heard he was not a Kempeitai.
Q. In other words, you had no reason to be
frightened of those persons ?
A. Mr. Uno used to wear a uniform around the
station.
Q. Was this uniform a uniform of the Kempei-
tai?
A. The Kempeitai had the same uniform as the
ordinary soldier did.
Q. Was that the type that Mr. Uno was wear-
ing? A. Yes, it was.
Q. You have testified, in your direct examina-
tion, that Miss Toguri brought food to Prisoners
of War. When did you hear about this—since the
war? A. I heard it very recently.
368 Iva Ikuko Togurt D’ Aquino
(Deposition of Lily Ghevenian. )
Q. In 1949?) [11]
(A. Yes.
Q. Of your own knowledge, do you know any
occasion, when Miss Toguri supplied food to Prison-
ers of War?
A. I did not know, then I learned it later.)
Q. What did Miss Toguri call herself when i
was broadcasting the Zero Hour?
A. She used to say, ‘‘This is Orphan Annie.”’
Q. Did she ever refer to herself as anything
else on this program? A. No, she has not.
Q. Do you recall Miss Toguri referring to her-
self as ‘‘Ann,’’ when she was broadeasting the Zero
Hour? A. I do not remember that.
Q. Did Miss Toguri ever mention to you that
she was under any duress to work at the radio sta-
tion ?
A. She mentioned once that Kempeis were
watching her.
(). Miss Ghevenian, do you recall making a state-
ment to Frederick Tillman, of the Federal Bureau
of Investigation, recently ?
A. Yes, I have talked to him.
Q. Do you recall telling Mr. Tillman that Miss
Toguri mentioned that she was never under any
duress of any kind?
A. Yes, I have, but I recall a few incidents as
I talk to you.
@. Do you recall, also, at the same time that
you told Mr. Tillman that Miss Toguri was treated
us. United States of America 369
(Deposition of Lily Ghevenian. )
in the same manner as any other Japanese or Nesei
working at the broadcasting station ?
A. Yes, she was.
Q. Was that statement true?
A. I did not know at that time what ‘‘duress’’
meant.
Q. Was Miss Toguri treated like any other
Japanese and Nisei working in the station?
A. We were all treated alike.
Q@. When did you talk to Mr. Tillman?
A. About a month ago.
@. Have you changed your statement, concern-
ing duress, as a result of talking [12] to someone
else? A. Yes, I have.
Q. Do you know of your own knowledge that
Miss Toguri was forced to work for Radio Tokyo?
A. Ido not know that.
Q. Did you ever hear any of the employees at
the radio station refer to Miss Toguri as ‘‘Tokyo
| Rose’’?
A. We have talked about it and we thought she
was ‘‘Tokyo Rose.”’
Q. Was that the general opinion around the
radio station ? A. Yes, it was.
Q. Was Miss Toguri pleased with her success,
with regard to broadcasting at Radio Tokyo?
A. She was always in a hurry and I did not
notice that.
Q. Do you recall making a statement to Mr.
Tillman, when you stated, and I quote: ‘‘Miss To-
370 Iva Ikuko Toguri D’ Aquino
(Deposition of Lily Ghevenian. )
guri talked to me about being referred to as *‘Tokyo
Rose’’ and was happy about it and was all smiles.”
Did you sign his statement? A. No, I did not.
Q. Do you not recall telling Mr. Tillman that?
A. No, If do not.
Q. Did you ever tell Mr. Tillman that Miss To-
guri mentioned being ‘‘Tokyo Rose’’ over the air?
A. JI remember one time she said such a thing.
Q. That she made such a statement over the air?
A. As far as I remember, she did.
Q. Did any police official or Kempeitai ques-
tion you concerning Miss Toguri? A. No.
Q. Did you ever hear Miss Toguri broadeast,
where she referred to the Ameican troops as the
‘“Boneheads in the Pacific’’?
A. No, I don’t remember that.
Q. Do you recall any of the scripts that Miss
Toguri broadcast where she referred to herself as
‘Your Enemy Ann’’?
A. I don’t remember that. [13]
Q. Do you recall anything that Miss Toguri
said while she was introducing these recordings?
A. She was just introducing records and did
not say anything else.
Q. Did she say anything that was designed to
cause homesickness to the American troops?
A. No, she did not.
Q. Did you ever hear Miss Toguri say, in her
broadcast, statements to the effect—wouldn’t it be
vs. United States of America onl
(Deposition of Lily Ghevenian.)
nicer to be home with your girl friend, rather than
fighting mosquitoes in the jungles?
A. I don’t remember her saying that.
Q. Was any of that material in the scripts that
you typed? A. No.
Redirect Examination
By Mr. Tamba:
Q. What kind of script did you type and for
what programs ?
A. I typed commentaries, news, gisiogues and
Prisoners’ messages.
Q. Do you remember the date you talked with
Mr. Tillman ? A. About a month ago.
Q. Do you know where he got your name?
A. He got it from several people.
Q. Did you sign any statement?
A. I did not sign any statement.
Q. Did he ask you if the Nisei and people who
were not Japanese Nationals were under constant
fear of the Kempeitai?
I think he did; I don’t remember.
Did he use the word ‘‘duress’’?
Yes, he did.
Did you know what it meant?
I did not know at that time.
Did you know of any Prisoners of War being
Be ocd around Radio Tokyo?
A. In Radio Tokyo? No.
OPoOrPOo>
312 Iva Ikuko Toguri D’ Aquino
(Deposition of Lily Ghevenian. )
Q. Were any other girls referred to as “‘Tokyo
Rose’’?
A. In the radio station? [14]
Q. Yes.
A. They did not know who ‘‘Tokyo Rose”’ was.
Q. Were any of the other girls suspected of be-
ing ‘‘Tokyo Rose’’? A. Yes.
Q. Who were they?
A. Ruth Hayakawa and June Suyama.
Q. Any others? A. That’s all I remember.
Q. In answer to one of Mr. Story’s questions,
you said you heard Miss Toguri broadcast over the
air that she was ‘‘ Tokyo Rose’’?
A. She did mention it; it was in the script.
Q. Do you know whose script that might have
been ? A. No.
Q. Who brought you that script?
A. Ido not remember whether it was Ken Oki
or Iva.
Q. It could have been Ken Oki who brought the
script that day? A. Yes.
Q. But you don’t recall who actually broadcast
that remark ? A. Ido not.
Q. Do you remember anything said by Miss
Toguri when she handed you the script, as to
whether she had read it?
A. Sometimes she told me to rush it, because
she had not read the script yet.
us. United States of America 373
(Deposition of Lily Ghevenian. )
Recross-Examination
By Mr. Story:
@. Have you talked to Miss Toguri’s husband
since you were interviewed by Mr. Tillman?
A. I met Mr. D’Aquino at Mr. Tamba’s office.
Q. Did you have a diseussion with Mr. D’Aquino
at that time? A. No, I did not.
@. Have you talked to Mr. D’Aquino at any
other time ?
A. I met him at Mr. Tamba’s hotel and that’s
the only time I saw him.
Redirect Examination
By Mr. Tamba:
@. Miss Ghevenian, you have talked to many
people about this? [15] A. Yes.
@. You’ve come to my hotel on one occasion and
again this morning? A. Yes.
Q. And the first time you came to my hotel,
there were many people present, weren’t there ?
A. I remember only three persons other than
Mr. Tamba—Nakamura, Ono and D’Aquino.
@. I asked you what you knew about the case?
A. Yes.
Q. And no one has told you what to testify ?
A. No.
(). And you were told to testify to the truth
and nothing but the truth? A. Yes.
Q. You have had discussions with outsiders and
374 Iva Ikuko Toguri D’ Aquino
(Deposition of Lily Ghevenian. )
other people, regarding this case, and you asked
other people why they were testifying against Iva
when she did nothing wrong?
A. Yes, I have talked to them.
Q. And what did they tell you in substance?
Mr. DeWolfe: Objected to as hearsay.
The Court: Submitted?
Mr. Collins: Yes.
The Court: The objection is sustained.
(A. These people who testify against her, they
told me to go ahead and have a good time and get
a free ride to the United States like they did.)
Q. Will you tell us who those people are, if you
remember ? A. Ken Oki did.
Q@. Anyone else?
A. Other people who went on that trial won’t
even say ‘‘Hello’’ to me.
Q. They are trying to avoid you?
A. That’s right.
Q. Who is trying to avoid you?
A. Nakamoto.
@. Anyone else, if you know? A. No.
/s/ LILY GHEVENTAN. [16]
Japan,
City of Tokyo,
American Consular Service—ss:
I do solemnly swear that I will truly and im-
partially take down in notes and faithfully tran-
vs. United States of America 375
scribe the testimony of Lily Ghevenian, a witness
now to be examined, so help me God.
j /s/ MARION A. PETERSON.
Subscribed and sworn to before me this eighteenth
day of April, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the United
States of America.
[American Consular Service Seal. ]
Service No. 578a; Tariff No. 38; No fee pre-
seribed.
Japan
City of Tokyo,
American Consular Service—ss.
CERTIFICATE
I, Thomas W. Ainsworth, Vice Consul of the
United States of America in and for Tokyo, Japan,
duly commissioned and qualified, acting under the
authority of a certain stipulation for taking oral
designations abroad, and upon order of the United
States District Court, made and entered March 22,
1949, in the Matter of United States of America,
Plaintiff, vs. Iva Ikuko Toguri D’Aquino, Defend-
ant, pending in the Southern Division of the United
States District Court, for the Northern District of
California, and at issue between United States of
America vs. Iva Ikuko Toguri D’Aquino, do hereby
certify that in pursuance of the aforesaid stipula-
tion and court order and at the request of Theodore
_ Tamba, counsel for the defendant Iva Ikuko Toguri
376 Iva Ikuko Toguri D’ Aquino
D’Aquino I examined Lily Ghevenian, at my office
in Room 3385, Mitsui Main Bank Building, ‘Tokyo,
Japan, on the eighteenth day of April, A.D. 1949,
and that the said witness being to me personally
known and known to me to be the same person
named and described in the interrogatories, being by
me first sworn to testify the truth, the whole truth,
and nothing but the truth in answer to the several
interrogatories and _ cross-interrogatories in the
eause in which the aforesaid stipulation, court order,
and request for deposition issued, her evidence was
taken down and transcribed under my direction by
Marion A. Peterson, a stenographer who was by me
first duly sworn truly and impartially to take down
in notes and faithfully transcribe the testimony of
the said witness Lily Ghevenian, and after having
been read over and corrected by her, was subseribed
by her in my presence; and I further certify that I
am not counsel or kin to any of the parties to this
cause or in any manner interested in the result
thereof.
In witness whereof, I have hereunto set my hand
and seal of office at Tokyo, Japan, this second day of
May, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[American Consular Service Seal. ]
Service No. 7438; Tariff No. 38; No fee prescribed.
[Endorsed]: Filed May 9, 1949.
us. United States of America oti
In the Southern Division of the United States
District Court for the Northern District of
California
No. 31712 B
UNITED STATES OF AMERICA,
Plaintiff,
VS.
IVA IKUKO TOGURI D’AQUINO,
Defendant.
DEPOSITION OF RUTH HAYAKAWA
Deposition of Ruth Hayakawa, taken before me,
Thomas W. Ainsworth, Vice Consul of the United
States of America, in Mitsui Main Bank Building,
Room 335, in Tokyo, Japan, under the authority of
a certain stipulation for taking oral designations
abroad, and upon order of the United States Dis-
trict Court, made and entered March 22, 1949, in
the matter of United States of America vs. Iva
Tkuko Toguri D’Aquino, pending in the Southern
Division of the United States District Court, for
the Northern District of California, and at issue be-
tween the United States of America vs. Iva [kuko
Toguri D’Aquino.
The plaintiff appearing by Frank J. Hennessey,
United States District Attorney; Thomas DeWolfe,
Special Assistant to the Attorney General, and Noel
Story, Special Assistant to the Attorney General,
and the defendant, appearing by Wayne N. Collins
and Theodore Tamba.
The said interrogations and answers of the wit-
378 Iva Ikuko Toguri D’ Aquino
ness thereto were taken stenographically by Marion
A. Peterson and were then transcribed by her under
my direction, and the said transcript being there-
after read over correctly to said witness by me.was
‘then signed by said witness in my presence.
It is Stipulated that all objections of each of the
parties hereto, including the objections to the form
of the questions propounded to the witness and to
the relevancy, materiality and competency thereof,
and the defendant’s objections to the use of the dep-
osition or any part of the deposition, by plaintiff,
on the plaintiff’s case in chief, shall be reserved to
the time of trial in this cause.
SUMI RUTH HAYAKAWA
of Tokyo, Japan, engaged in foreign trade of law-
ful age, being by me first duly sworn, deposes and
says:
Questions propounded by Mr. Tamba:
Your name is Ruth Hayakawa?
Yes; Sumi Ruth Hayakawa.
And you live at Tokyo? A. Yes.
And you are in business in Tokyo?
That’s right.
And you are one of the directors of the
FY ise Export and Import Company, Limited?
me Thats meght.
Q. And you are also engaged in other busi-
nesses ?
BE OPOoPS
us. United States of America 379
(Deposition of Sumi Ruth Hayakawa. )
A. That’s right; Director of Imperial Enter-
prises and Agent for the Vulcan Trading Company,
India.
@. And you were born in Japan ? A. Yes.
@. And you are a citizen of Japan?
A. Yes. |
@. You were educated in the United States.
Where? A. Los Angeles.
Q. And how long have you resided in Japan?
A. Since my return to Japan in 1941.
@. Were you ever employed BY Radio Tokyo?
A. Yes.
Q. When did you enter the employ of Radio
Tokyo? A. Mid-April, 1948. .
«). And how long were you employed with Radio
Tokyo? [2*]
What was she doing at that time ?
She came in as a typist and I believe she was
a typist when I met her.
@. Do you know whether or not she ever par-
ticipated in a radio broadeast known as the Zero
Hour? A. Yes. |
@. When did she start broadcasting on the Zero
*Page numbering appearing at bottom of page of original
Reporter’s Transcript.
A. I was officially employed until April, 1945.
@. Are you acquainted with Iva D’Aquino?
A. Yes, I am.
Q. When did you mect her?
A. I met her in the Summer of 1948.
Q. Where? A. At the radio station.
Q.
A.
380 Iva Ikuko Toguri D’ Aquino
(Deposition of Sumi Ruth Hayakawa.)
Hour ? A. I think, in the Fall of 1943.
@. And how long was she on this program?
A. She was there when I left in February, 1945.
Q. Do you know who was in the cast of that pro-
gram?
A. Yes; Norman Reyes and Iva, Ken Oki,
George Nakamoto, Mr. Oshidari, Ken Ishi, Sash
Moriyama.
Q. Were there any women, besides Iva, on that
program ? A. Yes, Mieko Furuya.
@. Was she Mrs. Oki? A. Yes.
Q. Was Mary Ishii on that program ?
A. Not while I was there.
Q. Was Mrs. Norman Reyes?
A. She was on the announcing staff; she might
have pinch-hit for Iva. |
@. Did you ever?
A. Yes; in the Fall of 1943, when Iva started to
broadeast, I took over the Sunday evening broad-
east in Iva’s absence.
Q. Did you ever, on any other occasion ?
A. J believe I did. [3]
Q. Do you know of any other women who sub-
stituted for Iva in her absence ?
A. Mieko Furuya (Mrs. Oki) might have.
Q. Do you know of any others?
A. I doubt whether the other women substituted.
@. Were there any other women announcers in
Radio Tokyo, besides you and the others you men-
tioned ?
vs. United States of America 381
(Deposition of Sumi Ruth Hayakawa.)
A. Yes; there was June Suyama and Kay Fuji-
wara, and Margaret Kato, and Kathryn Muraoka
(Mrs. Reyes).
Q. Do you know the girl who broadcast on the
German Hour? ie Wes:
What was her name?
Matsunaga; I can’t think of her first name.
Do you know where that girl is today?
I heard, in New Jersey.
Do you know where June Suyama is?
She died about a year ago.
Do you know a man, named Takano?
Yes, I did.
Who was he?
He was personnel employment chief—head
of personnel employment at Radio Tokyo.
‘Q. Where is that man today ?
A. He died in 1944 or 1945, during the air-raid.
Q. Incidentally, when did the air-raids increase
in intensity in this area?
A. The first air-raid was in November, 1944, and
then again in January and February, 1945, then I
left Tokyo. Judging from the paper, it continued
in March and April.
Q. Did you ever return to Tokyo in March and
April?
A. I returned to Tokyo the first of April and
there was a severe air-raid that night and several
during my two weeks’ stay in Tokyo.
Q. Do you know a man by the name of Major
Cousens ? A. Yes, I do. [4]
Pore PS re ee
382 Iva Ikuko Toguri D’ Aquino
(Deposition of Sumi Ruth Hayakawa.)
@. Who was he?
A. He was a Prisoner of War, who was working
at the radio station.
@. Did he train you to broadcast ?
A. No, he did not train me at the beginning—
it was Ted Wallace who trained me. Later Major
Cousens assisted me when I read commentaries.
Q. When he assisted you, will you tell me what
he did? ;
A. He coached me, by asking me to read and re-
read his commentaries, telling me where to empha-
size and where to pause.
Q. Do you know who coached or trained Mrs.
D’ Aquino ? |
A. I heard that both the Prisoners of War
worked with Mrs. D’Aquino, coaching her for radio.
Q. Did you ever see her with either of these two
men—coaching or training Mrs. D’Aquino?
A. Yes, I think I have. I remember T'ed Wal-
lace assisted Iva at the microphone.
Q. What kind of a microphone voice did Mrs.
D’Aquino have, if you know?
A. I didn’t think it was good.
Mr. DeWolf: Move that go out as a conclusion
and opinion.
The Court: What she thought of the voice may
go out. The objection will be sustained. The jury
will disregard it.
Q. Do you remember Mrs. D’Aquino being away
from the radio station for periods of time ?
vs. United States of America 383
(Deposition of Sumi Ruth Hayakawa.)
A. Yes; I didn’t know for what reasons, but she
was frequently away from the station. The staff
complained about her absences, especially Ken Oki.
Q. When you substituted for Mrs. D’Aquino,
who selected your records ?
A. I believe Cousens or Ted Wallace selected the
records and made the script, which I read.
Q. Do you know who was the Saturday Night
Party Girl? A. Mrs. Oki.
Q@. What did she do on the program ?
A. She came on every Saturday, as Saturday
Night Party Girl Betty.
(). Did she introduce records?
A. Yes, she introduced music.
Q. Did you see Prisoners of War around that
radio broadcasting room?
A. The only Prisoners of War around during
the Zero Hour, during the late afternoon—they
were Wallace and Cousens. There were other Pris-
oners of War around at other times, who used the
same studio. They were around during the earlv
afternoon, whereas the Zero Hour Prisoners of
War were late afternoon. [5]
Q. Who was in charge of the Prisoners of War?
A. Idon’t know, in the late afternoon.
Q. Did you ever see Nakamoto with the Prison-
ers of War?
A. Nakamoto had his private room, in which
Cousens and Wallace worked.
384 Iva Ikuko Togurt D’ Aquino
(Deposition of Sumi Ruth Hayakawa.)
Q. Do you know what the Kempeitai was during
the war?
A. The Kempeitai was the Japanese Army po-
licemen.
Q. Were you ever apprehended by the Kempei-
tai?
Mr. DeWolfe: I object to that as incompetent,
irrelevant and immaterial, improper, not germaine
to the issue.
Mr. Collins: I will point out that if she was
there at the time, as the testimony indicates, the ac-
tivities of the Kempeitai would be pertinent to the
issue.
Mr. DeWolfe: As to what they did, on this par-
ticular witness that has nothing to do with the de-
fendant.
Mr. Collins: Well, I think that the next answer
would explain that. I mean, I think the answer it-
self would explain that.
The Court: I will strike it out if it has no place
in the record. Read it.
A. Yes, I was questioned by the Kempeitai in
April, 1945, and detained over night. They called
me in because I frequented the Swedish Legation,
but most of the questioning was concerning Radio
Tokyo. They wanted to know who in Radio Tokyo
were Pro-American and who was whispering that
Japan was losing the war.
The Court: Proceed, the question and answer
mav stand.
vs. United States of America 385
(Deposition of Sumi Ruth Hayakawa.)
Q. Do you know if Mrs. D’Aquino broadcasted
| any propaganda and anything detrimental to the
United States?
A. No, I have not heard her broadeast anything
detrimental to America.
Q. Do you know of any incidents wherein Mrs.
D’Aquino indicated that she was in fear of the
Kempeitai ? |
A. She never told me outright, except on one
_ occasion—that was when we of the radio station had
a party at Kathryn Muraoka’s home. Everybody
started to dance, but when Iva was asked to dance,
she refused; so I asked her why she didn’t dance,
and she said that dancing was prohibited and the
Kempeitai would call us or pick on us if we danced.
Q. Did you ever see Kempeitais or persons sus-
pected of being Kempeitais around the radio sta-
tion, while you were there?
A. Yes, there were many Kempeitais and a few
were pointed out to me as Kempeitais. Also, we
did not know among ourselves who were Kempeitais.
Q. Do you recall who was pointed out to you as
Kempeitai or suspected of being Kempeitais?
A. I don’t recall the names or faces of the Kem-
peitai, there were so many around the radio station,
but among the employees of the radio station, I
personally had a feeling that Mr. Nii was assisting
the Kempeitai; I was afraid to talk to him. [6]
Q. While you were at the radio station, did you
ever hear anyone mention the name ‘‘'T’okyo Rose ?”’
A. Yes. I first heard the name ‘‘'T’okyo Rose’’
386 Iva Ikuko Togurt D’ Aquino
(Deposition of Sumi Ruth Hayakawa.)
in 1944, when Ken Oki asked me whether I had
read the newspapers of that day. I recall definitely
i ee a ae
that it was Sunday evening and when I told Ken ©
Oki that I had not seen the papers, he showed me a
copy of news that came in from the Foreign Office,
which said the G.I.s in the South were enjoying the
radio programs from Tokyo, especially the music¢
and the voice of a young lady, and this article said
that the woman’s voice was very soft and appealing
and they liked her program, and they wondered who
‘‘Tokyo Rose’’ was; so, I recall asking Ken who was
‘“‘Tokyo Rose’’ and Ken told me that it was I, be-
cause the article said Sunday evening and I was on
the Sunday evening program; and, also, Ken
pointed out that my voice was soft and appealing,
whereas Iva’s voice was not.
Q. Do you recall Mr. Oki, on another occasion,
saying: ‘‘Boys, we are making history; the monitor
picked up the ‘Tokyo Rose’ story. A Seattle store
would like to sponsor the program.’’ ?
A. No, I do not recall.
Q. Do you remember Ruth Matsunaga, who was
the girl on the German Hour, I believe?
A. I don’t know whether her first name was
Ruth or not, but her last name was Matsunaga.
Q. Did she resemble Mrs. D’Aquino?
A. Yes, she was round-faced and plump, like
Iva was—more inclined to be square-jawed.
Q. Do you recall whether or not Mrs. D’Aquino
had difficulty with the Japanese language ?
vs. Umted States of America 387
(Deposition of Sumi Ruth Hayakawa. )
A. Yes. I don’t believe she knew the language
as well as I, and I am pretty poor.
Q. Do you know whether she was registered as
an alien with the Japanese police and needed travel
: permits, in order to leave the city ?
A. Yes, I think I knew that; I don’t know
whether I heard it from her or [7] others, but I
knew that she was registered as an alien and had
| difficulty traveling in Tokyo.
) Q. Did you know a Charles Yoshii ?
| <A. Yes, Chuck Yoshii was at the radio station
for many years before I came and was considered
one of our best announcers.
Q. Did you know a George Noda?
A. Yes, George Noda, I believe, entered the
radio station a few months before I did.
Q. What did he do at the radio station?
A. George Noda was on the announcing staff,
reading news and commentaries.
Q. Did you know a Dorsey Kurokawa?
A. Yes, Dorsey Kurokawa came to the radio
station in the latter part of 1944 and was on the
regular announcing staff, reading news and com-
mentaries.
Q. What type of music was introduced by Mrs.
D’ Aquino?
_ A. iva’s program consisted of jazz and popular
music, and light operas and semi-classics.
Q. Did you know a Mrs. Topping?
A. Yes, I know her very well.
388 Iva Ikuko Togurt D’ Aquino
(Deposition of Sumi Ruth Hayakawa. )
Q. Was she connected with Radio Tokyo?
A. Mrs. Topping was not connected with Radio
Tokyo, but she came in periodically to broadeast.
Q. Did you accompany Mrs. Topping to and
from the radio station on those occasions ?
A. Yes, I was always with Mrs. Topping when
she came to the radio station.
Q. Did you ever help Mrs. Topping prepare
scripts ?
A. Ihave helped Mrs. Topping a few times with
her script, typing them for her.
Q. Did you know a Miss Ward? A. Yes
@. Who was she? -
A. Miss Ward was living with Mrs. Topping
and is a pianist.
Q. Did she ever come to the radio station? [8]
A. Yes, Miss Ward has played the piano over
the air a few times.
Q. Did you have occasion to observe whether or
not Mrs. D’Aquino was friendly with the Japanese
personnel around Radio Tokyo, or was she more
friendly with Prisoners of War?
A. No, she was not friendly with the Japanese;
she was always polite to all of us, but kept herself
away from our large staff room and confined her-
self to the Zero Hour staff room and the Prisoners
of War.
Q. Miss Hayakawa, you had occasion a number
of times to take food and things to Prisoners of
War, did you not?
A. While the three Prisoners of War, Cousens,
vs. United States of America 389
(Deposition of Sumi Ruth Hayakawa. )
Wallace and Reyes were in our large staff room,
when I entered Radio Tokyo, I felt sorry for their
food situation, and they often spoke of the lack of
vegetables, so I used to buy fresh vegetables and
pass it to them. Later I passed several American
magazines which [I had brought back from the
States to the Prisoners of War.
@. And that was done secretly? A. Yes.
Q. Did you know of Mrs. D’Aquino doing the
same thing?
A. She might have, but she would not have said
anything about it, just as I have never told what I
had done.
@. You told me that the other day and that is
one of the first times you’ve mentioned it ?
ma Yes.
Q. Did you ever recall Mrs. D’Aquino broad-
easting over the radio about the loss of ships?
A. No, I have never heard her broadcast any-
thing but music announcements.
Q. Were you present in the radio station when
the fall of Saipan was announced by the Japanese
Government as flash news and when the Zero Hour
program was interrupted for that occasion ?
A. I heard about it, but I don’t believe I was
there that day—I don’t believe so, it may have been
my day off.
Cross-Examination
By Mr. Story:
Q. Miss Hayakawa, you mentioned the nanies
390 Iva Ikuko Toguri D’ Aquino
(Deposition of Sumi Ruth Hayakawa.)
of several female announcers at Radio Tokyo.
Were any of these people regular participants on
the Zero Hour? [9]
A. No, the women announcers on the Zero Hour
were only Iva D’Aquino and Mieko Oki.
Q. Did Mrs. Oki have a regular part in all the
programs?
A. Yes, after she joined the Zero Hour staff,
she no longer belonged to our regular announcers
staff.
Q. Did she participate every day after she
joined or did she work from time to time?
A. She was not on daily, but confined to Satur-
day night, except when she substituted for Mrs.
D’Aquino, in Mrs. D’Aquino’s absence. But she
was at the radio station every day. I used to see
her every day. We were quite friendly.
@. Was the Sunday broadeast, at the time Zero
Hour was usually broadcast, called the Zero Hour
program ?
A. No. Zero Hour program was the program of
music by Norman Reyes. To my knowledge, the
entire program was not called the Zero Hour and
the Zero Hour program on Sunday evenings fol-
lowed the music program that I broadcasted for.
The seript was written by Cousens. |
@. When you were broadcasting, did you ever
refer to yourself as ‘‘Orphan Ann’’?
A. No, I have never referred to myself as ‘‘Or-
phan Ann.’’ On Sunday evenings, it was a semi-
classical music program. |
vs. Umted States of America 391
(Deposition of Sumi Ruth Hayakawa. )
Q. Did you ever refer to yourself as ‘‘Ann’’ on
any program?
A. I have never referred to myself as ‘‘Ann.”’
Q. In any of the broadcasts that Mrs. D’Aquino
made, that you heard, did you ever hear the Amer-
icans referred to as the ‘‘Orphans of the Pacific’’?
A. I don’t recall specific details of any of
her programs and can’t say that I exactly remem-
ber.
Q. Did you ever hear her say in a broadcast—
the Americans in the Pacific were ‘‘Bone Heads’’?
A. No, I have never heard her call such names.
@. Have you ever heard Mrs. D’Aquino make a
broadcast, saying that it was a pity that the Amer-
icans were in the Pacific fighting mosquitoes rather
than being home?
A. No, I don’t recall such details of her script.
Q. What did Mrs. D’Aquino call herself on the
radio?
A. In the earlier part of Mrs. D’Aquino’s music
program, she had no name, but later on they ex-
tended the program and she began to call herself
as ‘‘Orphan Ann.”’
Q. Did any other announcer or any other par-
ticipant use the name ‘‘Orphan Ann,’’ other than
Mrs. D’Aquino, to your knowledge?
A. To my knowledge, no one, other than Mrs.
D’ Aquino, called herself ‘‘Orphan Ann.”’
Q. Did you hear the Zero Hour program broad-
east regularly?
392 Iva Ikuko Togurt D’ Aquino
(Deposition of Sumi Ruth Hayakawa. )
A. I heard the broadcast frequently, but not
regularly.
Q. Did Mrs. D’Aquino ever tell you that she
was forced to work 1n Radio Tokyo or under duress
at any time? -
A. She has never told me of being under duress
or foreed to broadcast, but I had the impression
that she was. She’s never talked very much to me
of herself or of her program.
Q. Did you ever see anyone threaten Mrs.
D’Aquino in any way, when she was at Radio
Tokyo?
A. No, I have not. But no one has seen me being
questioned by the Kempeitai either. They work
very secretly.
Q. These Prisoners of War that you mentioned
in your testimony, who worked in the radio station
—what did they do?
A. Writing scripts and announcing, presenting
skits and plays.
@. These Prisoners of War, then, that Mrs.
D’Aquino gave food to, were collaborators, were
they not, with the Japanese Government?
A. They were working at the radio station by
order of the Japanese Army, but I wouldn’t call
it collaborating.
@. Did you ever see copies of the orders, order-
ing Prisoners of War to work for the Japanese
Government ? A. No.
_ vs. United States of America 393
(Deposition of Sumi Ruth Hayakawa. )
@. Then that is only an opinion of yours?
A. I guess so. [11]
Redirect Examination
By Mr. ‘T'amba:
Q. Did you ever know that Mrs. Reyes broad-
east on the Zero Hour?
A. She wasn’t the regular announcer on the
Zero Hour. I don’t know whether she ever broad-
easted or not.
Q@. Were there any other girls who broadcast
introductions to music on Radio Tokyo, besides
Mrs. D’Aquino?
A. Yes, all the women announcers specialized in
announcing music programs.
Q. What time of the day did you go on the air
on Sundays?
A. My schedule of announcing programs
changed frequently during my years at the radio
station. There were Sundays when I had an after-
noon symphony program (musie concert) and then
the Sunday Concert on the same transmission as the
Zero Hour.
Q. That would be between 6 and 7 p.m.?
A. My recollection of that transmission was
from 5:40 to 6—twenty minutes.
Q. How long was Mrs. D’Aquino’s program, if
you remember ?
A. Her program was about twenty minutes.
Q. How many records did she play on the pro-
394 Iva Lkuko Togurt D’ Aquino
(Deposition of Sumi Ruth Hayakawa.) ’
gram, if you remember? A. I can’t saga
Q. How many records did you play when your
program was from 5:40 to 6 p.m. ?
A. JI think I usually played about six records.
Mr. Tamba addressing Mr. Story:
‘Now I’m asking these questions, Mr. Story, for
the sole purpose of showing general conditions
about the radio station and none other.
Redirect Examination
Continued
By Mr. Tamba:
Q. Did you ever tell anyone that you were ar-
rested by the Kempeis?
A. I didn’t mention my arrest until after the
War was over.
Q. Were you in fear of the Kempeitai all of the
time that you worked at the radio station?
Mr. DeWolfe: I object to that as immaterial,
improper, irrelevant and incompetent.
The Court: The objection is sustained.
Mr. Collins: I might point out, if Your Honor
please, that the witness has testified that the Kem-
peitai were at Radio Tokyo constantly and——
Mr. DeWolfe: I might say, Your Honor, about
that, that the question was, ‘‘Were you in fear of
the Kempeitai—’’, if Your Honor wishes to hear
from me?
The Court: If counsel is through?
Mr. Collins: Yes. And I might say, it is a fairly
long answer, if Your Honor please, but I think that
vs. Umted States of America 395
(Deposition of Sumi Ruth Hayakawa. )
it has a direct bearing upon the matcrial issue and
relates to the fact that there were Kempeitai agents
at Radio Tokyo constantly. She so testified in the
deposition and now she gives a complete explana-
tion, together with certain details, that actually
transpired at Radio Tokyo.
The Court: Read the question. I think I sus-
tained the objection.
(Question reread by Mr. Collins).
The Court: The objection will be sustained.
Mr. Collins: That was the last question that ap-
pears on the original.
Mr. Tamba: That is it, that is the last question.
The answer is quite long.
(A. I wasn’t aware of fear of the Kempeitai
until toward the end of 1943 and the rest of the
time, and it was a constant dread from the Summer
of 1944, in that you didn’t dare to talk to anyone,
whether they were your friends or not, of personal
opinions or viewpoints. I remember one detail; the
Prisoners of War asked me once what my pleasures
were—what I did for (12] amusement—and I re-
member saying that flower arrangement was the
only source of pleasure and recreation for me. That
remark was considered unpatriotic by the Kempei-
tais and Mrs. Oki (Mieko Furuya), whom I con-
sidered one of my closest friends at the time,
warned me that the Kempeitai might call me in and
reprimand me for telling the Prisoners of War
that. And for talking or being seen with the Pris-
396 Iva Ikuko Togurit D’ Aquino
(Deposition of Sumi Ruth Hayakawa. )
oners of war also. She said that the Kempeiti had
told her to tell me. It scared me to the extent where
I no longer went down to the studio to listen to
their program, except only on the occasions when I
was called in to participate in the Prisoners of War
program. It was impossible to discuss interviews
by the Kempeitai with anyone, because when I was
detained by the Kempeitai, before they released me,
I had to sign a statement which they wrote because
I could not write Japanese, which they read to me
and explained to me, which meant that I was not
to tell anyone, not even my mother and father, that
I was questioned and detained by the Kempeitai.
If I told anyone about my detention, the Kempeitai
will not be held responsible for anything that might
happen to me. I had to sign that and put my thumb
print on it. Of course, they told me to sign the
statement, telling me ieidents of people being
questioned and detained and not coming out of the
Kempeitai Headquarters alive. )
/s/ SUMI RUTH HAYAKAWA.
Japan,
City of Tokyo,
American Consular Service—ss:
I do solemnly swear that I will truly and impar-
tially take down in notes and faithfully transcribe
the testimony of Ruth Hayakawa, a witness now to
be examined, So help me God.
/s/ MARION A. PETERSON.
vs. United States of America 397
Subscribed and sworn to before me this eight-
eenth day of April, A.D. 1949.
/s/ THOMAS W..AINSWORTH,
Vice Consul of the
United States of America.
[ American Consular Service Seal. ]
Service No. 577a; Tariff No. 38; No fee pre-
scribed.
Japan,
City of Tokyo,
American Consular Service—ss:
CERTIFICATE
I, Thomas W. Ainsworth, Vice Consul of the
United States of America in and for Tokyo, Japan,
duly commissioned and qualified, acting under the
authority of a certain stipulation for taking oral
designations abroad, and upon order of the United
States District Court, made and entered March 22,
1949, in the Matter of United States of America,
Plaintiff, vs. Iva Ikuko Toguri D’Aquino, Defend-
ant, pending in the Southern Division of the United
States District Court, for the Northern District of
California, and at issue between United States of
America vs. Iva Ikuko Toguri D’Aquino, do hereby
certify that in pursuance of the aforesaid stipula-
tion and court order and at the request of Theodore
Tamba, counsel for the defendant Iva Ikuko Toguri
D’Agquino I examined Sumi Ruth Hayakawa, at my
office in Room 335, Mitsui Main Bank building,
398 Iva Ikuko Togurt D’ Aquino
Tokyo, Japan, on the eighteenth day of April, A.D.
1949, and that the said witness being to me person-
ally known and known to me to be the same person
named and described in the interrogatories, being
by me first sworn to testify the truth, the whole
truth, and nothing but the truth in answer to the
several interrogatories and cross-interrogatories in
the cause in which the aforesaid stipulation, court
order, and request for deposition issued, her evi-
dence was taken down and transcribed under my
direction by Marion A. Peterson, a stenographer
who was by me first duly sworn truly and impar-
tially to take down in notes and faithfully tran-
scribe the testimony of the said witness Sumi Ruth
Hayakawa, and after having been read over and
corrected by her, was subscribed by her in my pres-
ence; and I further certify that I am not coun-
sel or kin to any of the parties to this cause or in
any manner interested in the result thereof.
In witness whereof, I have hereunto set my hand
and seal of office at Tokyo, Japan, this second day
of May, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[ American Consular Service Seal. |
Service No. 746; Tariff No. 38; No fee prescribed.
[Endorsed]: Filed May 9, 1949.
us. United States of America 399
In the Southern Division of the United States Dis-
trict Court for the Northern District of Cali-
fornia.
No. 31712 R
UNITED STATES OF AMERICA,
Plaintiff,
VS.
IVA IKUKO TOGURI D’AQUINO,
Defendant.
DEPOSITION OF FOUMY SAISHO
Deposition of Foumy Saisho, taken before me,
Thomas W. Ainsworth, Vice Consul of the United
States of America, in Mitsui Main Bank Building,
Room 335, in Tokyo, Japan, under the authority
of a certain stipulation for taking oral designations
abroad, and upon order of the United States Dis-
trict Court, made and entered March 22, 1949, in
the Matter of the United States of America vs.
Iva Ikuko Toguri D’Aquino, pending in the South-
ern Division of the United States District Court,
for the Northern District of California, and at issue
between the United States of America vs. Iva [kuko
Toguri D’Aquino.
The plaintiff, appearing by Frank J. Hennessy,
United States District Attorney; Thomas DeWolfe,
Special Assistant to the Attorney General, and
Noel Story, Special Assistant to the Attorney Gen-
eral, and the defendant, appearing by Wayne N.
Collins and Theodore Tamba.
400 Iva Ikuko Toguri D’ Aquino
The said interrogatories and answers of the wit-
ness thereto were taken stenographically by Irene
Cullington and were then transcribed by her under
my direction, and the said transcriptions being
thereafter read over correctly to said witness by
me and then signed by said witness in my presence.
It is Stipulated that all objections of each of the
parties hereto, including the objections to the form
of the questions propounded to the witness and to
the relevancy, materiality and competency thereof,
and the defendant’s objections to the use of the
deposition, or any part of the deposition, by plain-
tiff, on the plaintiff’s case in chief, shall be reserved
to the time of trial in this cause.
FOUMY SAISHO
of Tokyo, Japan, employed by the ‘‘Readers Di-
gest,’’ Japanese Branch, of lawful age, being by me
duly sworn, deposes and says:
Direct Examination
By Mr. Theodore T'amba:
@. State your full name, please?
A. Foumy Saisho.
(). Miss Saisho, where were you born?
A. Japan.
Q. You are a Japanese National?
me YES.
Q. You have been in the United States, have
you not? A. Yes.
@. When were you in the United States.
vs. United States of America 401
(Deposition of Foumy Saisho.)
m= From 1930 to 1933.
Q. You were attending the University of Michi-
gan? A. Yes.
Q. What is your present business or occupa-
tion?
A. I am with the Editorial Department of the
Readers Digest, Japan Branch.
Q. Were you ever connected with Radio Tokyo?
A. Yes.
Q. For how long a period of time?
A. From August, 1935, to 1945, September, I
think.
Q. What work did you do at Radio Tokyo?
A. I was chief translator.
@. What did you translate, Miss Saisho?
A. Japanese commentaries. Before the war I
used to translate cultural subjects and news from
Japanese to English.
Q. During the war what did you do?
A. I was in the Lecture Department translat-
ing Japanese into English.
Q. Do you know Iva Toguri, also known as Iva
D’ Aquino? A. Wes.
Q. When did you quit Radio Tokyo?
A. When?
Yes. A. Around 1948.
Q. How long did your acquaintanceship con-
tinue ?
A. Until around the end of the war. Since
then I have not seen her.
402 Iva Ikuko Toguri D’Aquino
(Deposition of Foumy Saisho.)
Q. Did you ever work on any of her script?
A. No, I have not.
Q. What did Miss Toguri do at the radio sta-
tion ?
A. At first she was with the business depart-
ment. Later on she became an announcer. For
Major Cousens’ program, the ‘‘Zero Hour.”’
Do you know who prepared her script?
Major Cousens.
Who coached her? A. Major Cousens.
What kind of script did she read?
She read introductions to music. [3*]
What kind of music was that?
Usually American jazz.
Did Miss Toguri ever broadcast the loss of
duips that you know of? A. -No.
(). Who did broadcast that type of news?
A. That would be broadcast by the news an-
nouncer.
Q. Do you know who was on the Zero Hour
program besides Miss Toguri and Major Cousens?
A. Ken Oki, Ken Ishii, Miss Hayakawa and
Moriyama, and I think a person called Ozaki.
Q. Were any women on that program besides
‘OPOrPOOPO
Miss Toguri? A. Not regularly.
Q. Did any women take part on that program
at any time? A. Yes.
Q. Who were they?
* Page numbering appearing at bottom of page of original
Reporter’s Transcript.
us. United States of America 403
(Deposition of Foumy Saisho. )
A. Ruth Hayakawa, Mary Ishii, and the pres-
ent Mrs. Oki.
What name did she use in broadcasting?
‘*Annie,’’ I think.
Who gave her that name?
To the best of my knowledge, Major Cousens.
Did you ever hear the name ‘‘Tokyo Rose’”’
at the radio station? A. No.
Q. Did you ever hear anybody mention the name
‘Tokyo Rose’’ in conversation with you?
A. There was mention of ‘‘Tokyo Rose”’ toward
the end of the war.
Q. Did you ever have a conversation with Ken
Oki about Tokyo Rose? A. Yes.
@. What was that conversation ?
A. I asked him if Tokyo Rose indicated any
particular person. He said that it did not repre-
sent any particular person, but it was used in
broadcasting to the American soldiers. [4]
Q. Did you ever have a conversation with Mr.
Oki to the effect that he thought he was entitled
to one-half of the royalties for the use of ‘‘Tokyo
Rose’’? A. Yes.
Q. Where did that conversation occur?
A. Almost immediately after the surrender,
early part of September.
Q. Where? A. Radio Tokyo.
Q. Did you ever have a conversation with Ken
Oki in which he said ‘‘Iva can’t do this to us’’?
A. Yes.
OFOrPe
404 Iva Ikuko Toguri D’ Aquino
(Deposition of Foumy Saisho.)
Q. Was that in reference to the use of the name
‘“‘Tokyo Rose’’? A. Yes.
Q. Did you ever hear or know of Mrs. D’Aquino
broadcasting about men ineligible for the Ameri-
can army fraternizing with women who had been
left at home? A. I don’t recall that.
Q. Did you ever know of Mrs. D’Aquino broad-
casting anything other than what was on her script ?
A. No.
Q. Were there any other women at Radio Tokyo
besides those you mentioned and Mrs. D’Aquino
who broadcast news and music ? A. Yes.
Who were they?
Suyama, June, I think that was all.
Kathleen Fujiwara, do you know her?
Yes.
Did she broadeast news and announce music?
She announced music, I think.
Are you familiar with the German Hour?
I heard a voice once. [5]
Was that a woman’s voice? A. Yes.
What did she broadcast?
News, I think. I didn’t pay much attention
to it, but it was in English.
Q. What kind of a broadcasting voice did Miss
Toguri have?
A. She had a rather masculine sort of voice, low
and throaty.
Q. What kind of music did she introduce?
A. Chiefly, American jazz, I think.
POOPOPOoOPo Pe
us. United States of America 405
(Deposition of Foumy Saisho. )
Q. Do know if the Japanese Government had
other radio stations besides Radio Tokyo?
m. Wes:
Q. Where? A. In the South.
Q. Name some of the places?
A. Formosa, Batavia, and the Philippines.
Q. Have you been present at conferences at
Radio Tokyo where those stations were discussed ?
A. Yes.
Q. Was Major Tsuneishi present at the time?
A. Yes.
Q. Did you learn that Mrs. D’Aquino became
married during the war?
A. No, I did not know that.
(). Have you learned since ? A. Yes.
Q. Did Mrs. D’Aquino ever remain around the
station after working hours?
A. I don’t believe so.
Q. Did you ever have conversations with Mrs.
D’Aquino about the war.
A. Yes, occasionally. [6]
Q. In particular, on one occasion when she
stated, ‘‘This is an awful country’’? mm, SOs.
Q. Were her attitudes and expressions pro-
American or pro-Japanese ?
A. Pro-American.
Mr. DeWolfe: Just a minute, Mr. Tamba. I
object to that as calling for a conclusion and being
too speculative and conjectural.
The Court: Submitted ?
Mr. Collins: Yes.
406 Iva Ikuko Togurt D’ Aquino
(Deposition of Foumy Saisho. )
The Court: Objection sustained.
(A. Pro-American.)
Q. Did you know what the Kempei-tai was dur-
ing the war? A. Yes.
Q. What was it?
A. Military Police; it was greatly feared by
the people.
Q. Do you know of any Kempei-tai agents
being present at Radio Tokyo while you were there ?
A. Yes.
Q. Where were those Kempei-tai ?
A. They mixed with people and came to inves-
tigate each worker—what they were doing.
Q. Do you recall a Kempei-tai agent who used
to sit near to you? A. Yes, I do.
Q@. Was he there continually or constantly
watching you? |
A. Not constantly. He would go away once in
a while. Almost every day he was there.
@. Did he ever ask you about other people in
the station and what they were doing?
A. Yes.
@. Do you know who prepared the news items
on the Zero Hour?
A. I think it was by Ince and he broadeast it
himself.
Q. Do you know whether Miss Toguri or Mrs.
D’Aquino ever wrote any? A. I don’t know.
@. Did she ever make a statement to you that
it was impossible for Japan to win the war?
vs. United States of America 407
(Deposition of Foumy Saisho.)
A. I don’t quite recall, but something to that
effect. [7] |
Q. Did she ever make the statement to you that
she was working for the prisoners of war for the
purpose of aiding them and nothing else?
A. I don’t recall that statement.
Q. Did you know that Mrs. D’Aquino had access
to allied news reports and knew how the war was
progressing ?
A. Well, all Zero Hour people had, so natur-
ally she may have.
Q. Did Mrs. D’Aquino ever tell you that she had
information on short wave broadcast ?
az. No.
Q. Did she ever tell you that she hated the
Japanese militarists ? A. Yes.
Q. Did you ever know Mr. Ken Oki?
A. Yes.
Q. Do you know his reputation for truth, hon-
esty and integrity in this community ?
Mr. DeWolfe: I object to that as incompetent,
irrelevant and immaterial, no proper foundation
being laid and not a proper impeachment question.
The Court: Objection sustained.
(A. Not good at all.)
Q. Do you know Ken Ishii? A. Yes.
@. Do you know his reputation for truth, hon-
esty and integrity?
Mr. DeWolfe: I object to that as being incom-
408 Iva Ikuko Toguri D’ Aquino
(Deposition of Foumy Saisho.)
petent, irrelevant and immaterial, not proper im-
peachment, no foundation laid.
The Court: Objection sustained.
(A. Not good at all.)
Q. Do you know George Nakamoto?
A. Yes.
Q. What is his reputation for truth, honesty
and integrity ?
Mr. DeWolfe: Objected to as being incompe-
tent, irrelevant and immaterial, not proper im-
peachment, no proper foundation laid.
The Court: Objection sustained.
(A. It wasn’t particularly too good.)
A. I think that is all.
Cross-Examination
By Mr. Story:
Q. Miss Saisho, you have testified that Major
Cousens prepared the script which Miss Toguri
used on the Zero Hour program? A. Yes.
Q. Do you know of your own knowledge that
he prepared these scripts? A. Yes, I do. [8]
Q. Did Major Cousens remain at Radio Tokyo
until the end of the war? A. No.
@. When did he leave the radio station?
A. About June, I believe, 1944. ©
Q. Did Major Cousens return to the radio sta-
tion after that time?
A. I heard that he did, but I never saw him.
Q. From June, 1944, until the end of the war
vs. United States of America 409
(Deposition of Foumy Saisho. )
you never saw Major Cousens at the radio station?
n. Ne.
Q. Who prepared Miss Toguri’s scripts after
Major Cousens left the radio station?
A. I don’t know.
Q. Miss Saisho, how many times were you actu-
ally physically present at the radio station when
the Zero Hour program was broadcast?
A. I believe only once.
Q. One time? A. Yes.
Q. Of your own knowledge do you know of any
instances where Mrs. D’Aquino was questioned by
the Kempei-tai ? A. No.
Q@. Was Mrs. D’Aquino forced in any way to
broadcast for the Radio Tokyo?
A. Not to my knowledge.
@. Did Miss Toguri ever indicate to you that
she was proud of her success as an announcer on
the Zero Hour program? epaest
@. Was Miss Toguri a conscientious hard
worker at the radio station? A. Yes. [9]
Q@. Where was the Zero Hour beamed on the
short wave?
A. Mainly to the Pacific Islands and to Austra-
lia, I am not sure about that.
@. Was the Zero Hour program intended for
the American soldiers in the Southwest Pacific
Islands ? A §6Wes.
Q. After Major Cousens became ill and left the
radio station, did Miss Toguri ever tell you that
410 Iva Ikuko Togurt D’ Aquino
(Deposition of Foumy Saisho. )
the scripts which were being prepared for her were
terrible and not worthy of being broadcast?
A. That is right; she did.
Q. Did Miss Toguri ever tell you that the Zero
Hour program was the best program broadcast at
Radio Tokyo?
A. I have a vague recollection of it, but not
the exact words, but I have a vague recollection
that she said something like that.
Q. Did Miss Toguri consider herself the most
successful announcer at Radio Tokyo?
A. I believe so. |
Q. Was Miss Toguri treated in the same man-
ner as other Japanese Nationals?
A. By Radio Tokyo?
Q. By Radio Tokyo.
A. I am not sure; I don’t know. In point of
remuneration she was treated in the same Japa-
nese way.
Q. Do you mean by that that she received the
same pay as the other persons employed there?
A. Yes, the same rate.
Q. Was Miss Toguri required to work as many
hours at the Radio Station as other personnel who
received the same salary as she?
A. I don’t believe so. [10]
Q. Approximately how long did Miss Toguri
remain at the broadcasting station each day?
A. Less than five hours; actually she only came
for her broadcast.
vs. United States of America 411
(Deposition of Foumy Saisho. )
Q@. How many hours were you required to be
at the radio station?
A. Minimum of eight hours. But, of course,
she made it up. It was very easy to make eight
hours when you are actually working less than
that. |
Q. My question was, Miss Saisho, how many
hours each day was Miss Toguri required to be
physically present at the radio station?
Mr. Collins: I submit, if Your Honor please,
that is calling for the opinion and conclusion of
the witness, no foundation is laid.
The Court: Submitted?
Mr. DeWolfe: I think it is a proper question.
(Question read.)
The Court: You may answer.
A. The same as the rest of the staff; that is,
eight hours.
~Q. Miss Toguri was required to put in eight
hours each day at the radio station?
m~ tf am Mot sire, of course, but that is my
belief.
Q. When did Miss Toguri usually arrive at the
radio station ?
A. Of course, I was not always watching her
arrive, but I would see her usually in the after-
noon.
Q. What time did you usually arrive at work
each day? aos Did. I
Q. Yes.
412 Iva Ikuko Togurt D’ Aquino
(Deposition of Foumy Saisho.)
A. Before noon, anyway, between ten and eleven
and stayed until seven.
Q. Did Miss Toguri arrive there in the morn-
ing between 10 and 11? A. No; very rarely.
Q. Then you are testifying that Miss Toguri
was required to spend eight hours a day at the
radio station?
A. That is the requirement for every staff mem-
ber, but I am not sure whether she was a staff em-
ployee or just attached to it. I don’t know the
office arrangement in her personal case.
Q@. What was your salary each month?
A. Ihave forgotten. It was about 120 yen and
went up to 150 yen. [11]
Q. What was Miss Toguri’s salary?
A. Of course, I don’t know, but I imagine it
was about the same.
Redirect Examination
“By Mr. Tamba:
Q. Miss Saisho, do you know if Miss Toguri
was absent from the radio station for any period
of time? A. Yes.
Q. How often was she absent?
A. She was quite often absent. She was absent
continually toward the end of the war.
Q. That is all.
Reeross-Examination
By Mr. Story:
Q. You say she was absent continuously toward
vs. United States of America 413
(Deposition of Foumy Saisho. )
the end of the war. When did this start, how long
before the end of the war?
A. As soon as Miss Ishii took over, that was,
I don’t recall the exact date, but the fall of 1944.
Q. You have testified that Miss Toguri was con-
tinuously absent from the summer of 1944, or do
you mean the summer of 1945?
A. Autumn or winter of 1944. Still I am not
prepared to say that she was continuously absent.
@. But you worked at the radio station. Are
you in a position to know when Miss Toguri was
at the radio station and when she was not there?
A. No, there was no way of knowing exactly.
* Q. Then so far as you know she could have
been there all of the time and you would not have
known about it?
A. Theoretically so, but it can’t happen, be-
cause the people who came I would see.
Q. You have testified that you were only physi-
cally present in the radio studio on one occasion
during the Zero Hour program? A. Yes.
®. That is all.
/s/ FOUMY SAISHO. [12]
Japan,
City of Tokyo,
American Consular Service—ss.
I do solemnly swear that I will truly and im-
partially take down in notes and faithfully tran-
414 Iva Ikuko Togurt D’ Aquino
scribe the testimony of Foumy Saisho, a witness
now to be examined. So help me God.
/s/ IRENE CULLINGTON.
Subscribed and sworn to before me this twenty-
first day of April, A.D. 1949.
| /s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[American Consular Service Seal. ]
Service No. 598a; Tariff No. 38, No fee pre-
scribed.
Japan,
City of Tokyo,
American Consular Service—ss.
CERTIFICATE
I, Thomas W. Ainsworth, Vice Consul of the
United States of America in and for Tokyo, Japan,
duly commissioned and qualified, acting under the
authority of a certain stipulation for taking oral
designations abroad, and upon order of the United
States District Court, made and entered March 22,
1949, in the Matter of United States of America,
Plaintiff, vs. Iva Ikuko Toguri D’Aquino, Defend-
ant, pending in the Southern Division of the United
States District Court, for the Northern District of
California, and at issue between United States of
America vs. Iva Ikuko Toguri D’Aquino, do hereby
certify that in pursuance of the aforesaid stipula-
tion and court order and at the request of Theo-
dore Tamba, counsel for the defendant Iva Ikuko
vs. United States of America 415
Toguri D’Aquino I examined Foumy Saisho, at my
office in Room 335, Mitsui Main Bank Building,
Tokyo, Japan, on the twenty-first day of April,
A.D. 1949, and that the said witness being to me
personally known and known to me to be the same
person named and described in the interrogatories,
being by me first sworn to testify the truth, the
whole truth, and nothing but the truth in answer to
the several interrogatories and cross-interrogatories
in the cause in which the aforesaid stipulation,
court order, and request for deposition issued, her
evidence was taken down and transcribed under my
direction by Irene Cullington, a stenographer who
was by me first duly sworn truly and impartially
to take down in notes and faithfully transcribe the
testimony of the said witness Foumy Saisho, and
after having been read over and corrected by her,
was subscribed by her in my presence; and I fur-
ther certify that I am not counsel or kin to any
of the parties to this cause or in any manner in-
terested in the result thereof.
In witness whereof, I have hereunto set my hand
and seal of office at Tokyo, Japan, this fifth day
of May, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[American Consular Service Seal.]
Service No. 808; Tariff No. 38; No fee pre-
seribed.
[Endorsed]: Filed Aug. 24, 1949.
416 Iva Ikuko Toguri D’ Aquino
In the Southern Division of the United States
District Court for the Northern District of
California
No. SiR
UNITED STATES OF AMERICA,
Plaintiff,
vs.
IVA IKUKO TOGURI D’AQUINO,
Defendant.
DEPOSITION OF MASAAKT YANAGI
Deposition of Masaaki Yanagi, taken before me,
Thomas W. Ainsworth, Vice Consul of the United
States of America, in Mitsui Main Bank Building,
Room 335, in Tokyo, Japan, under the authority
of a certain stipulation for taking oral designations
abroad, and upon order of the United States Dis-
trict Court, made and entered March 22, 1949, in
the Matter of the United States of America vs. Iva
Ikuko Toguri D’Aquino, pending in the Southern
Division of the United States District Court, for
the Northern District of California, and at issue
between the United States of America vs. Iva
Ikuko Toguri D’Aquino.
The plaintiff appearing by Frank J. Hennessy,
United States District Attorney; Thomas DeWolfe,
Special Assistant to the Attorney General, and Noel
Story, Special Assistant to the Attorney General,
and the defendant, appearing by Wayne N. Collins
and Theodore ‘'amba.
vs. United States of America 417
The said interrogations and answers to the wit-
ness thereto were taken stenographically by Irene
Cullington and were then transcribed by her under
my direction, and the said transcription being
thereafter read over correctly to said witness by
me and then signed by said witness in my presence.
It is Stipulated that all objections of each of
the parties hereto, including the objections to the
form of the questions propounded to the witness
and to the relevancy, materiality and competency
thereof, and the defendant’s objections to the use
of the deposition, or any part of the deposition, by
plaintiff, on the plaintiff’s case in chief, shall be
reserved to the time of trial in this cause.
MASAAKI YANAGI
of ‘Tokyo, of lawful age, being by me duly sworn,
deposes and says:
Direct Examination
fy Mo. Tamba :
State your name in full.
Masaaki Yanagi.
What is your present address?
223 Suwa Machi Sinjuku-Ku, Tokyo.
Where were you born?
In San Francisco, California.
When? A. 11 October, 1918.
When did you come to Japan?
In April, 1933.
Have you had occasion to return to the
Waited States since 1933?
+ he oe on ek ae
418 Iva Ikuko Toguri D’ Aquino
(Deposition of Masaaki Yanagi.)
A. No, I never have.
Q. Were you ever in the Japanese Army?
A. Yes, from December, 1938, to May, 1942.
Q. Have you participated in a Japanese elec-
tion? A. Yes, I have. [2*]
Q. You are now a Japanese national and citizen,
ler that correct? A. Yes.
Q. Were you ever connected with Radio Tokyo?
A. Yes, from November, 1943, to September,
1945.
Q. What were your duties at Radio Tokyo?
A. Iwas classified as a clerk and my duties were
as English announcer.
Q. What did you broadeast ?
A. News and commentaries and sometimes in-
troduced music.
@. Who prepared your scripts for broadcast?
A. They were prepared by the English writing
staff and they translated the news which came from
the Japanese script section.
Q. Are youmarried? $A. Yes, I am.
Q. What does your family consist of ?
A. My wife and one son.
Q. What were your hours of employment at
Radio ‘Tokyo? A. The hours varied.
Q. Do you know a person named Iva Toguri,
also know as Iva D’Aquino? A. Yes.
Q@. When and where did you meet that person?
A. When I entered Radio Tokyo, she was work-
*Page numbering appearing at bottom of page of original
Reporter’s Transcript.
vs. United States of America 419
(Deposition of Masaaki Yanagi.)
ing there as an announcer on the Zero Hour staff.
Q. What was she announcing on the Zero Hour?
A. She opened this program of the Zero Hour
and also introduced music.
Q. What kind of music did she introduce?
A. It was jazz music.
Q. Did she read from any script in her announc-
ing of musical records? [3]
A. Yes, she had a seript in her hands.
@. You have seen her broadeast?
A. Yes, I have.
@. You have heard her broadcast?
A. Yes, I have.
Q.
Have you ever noticed her in and around the
radio station, coming and going from work, as-
sociating with people there?
A. No, I have not.
Q. May I put it this way. She was not par-
ticularly friendly with you, was she? A. No.
Q. Was she particularly friendly with Japanese
people around the station? A. No.
Q. Was she particularly friendly with the pris-
oners, do you know? A. I don’t know.
Q. Can you describe what kind of an announcing
voice that Miss Toguri had?
A. One comment around the radio station when
‘‘Tokyo Rose’’ came out was that Tokyo Rose had
a sweet voice, but I did not think she had a sweet
voice.
@. What kind of voice did she have?
420 Iva Ikuko Togurt D’ Aquino
(Deposition of Masaaki Yanagi.)
A. When I met her in the halls and said ‘‘hello”’
and when she answered, her voice sounded more
masculine to me.
Q. How did her voice sound over the radio; did
it have a musical sound ?
A. Compared to the other girls’ voices, her voice
sounded masculine.
Q. Were there other women announcers around
the radio station? A. Yes.
Q. Who were they?
A. They were Miss Suyama, Miss Hayakawa,
Miss Murooka, and [4] Miss Mary Ishii, and for
a short time, Miss Furuya, or the present Mrs. Oki.
Q. Was there a gril named Matsunaga?
A. Yes, there was a girl by that name, but she
was not on the regular Radio Tokyo staff, but was
on the German Hour.
Q. Was there a girl there by the name of
Furuya? A. Yes. She was an announcer.
Q. What did Miss Suyama broadcast?
A. She broadcast news commentaries, introduced
music and she had the children’s hour.
Q. What did Miss Hayakawa do?
A. She did the same, except for the children’s
Q. What did Mrs. D’Aquino do?
A. She was on the Zero Hour.
Q. What did she broadcast?
A. She opened the program and introduced
music.
vs. Umted States of America 421
(Deposition of Masaaki Yanagi. )
@. Is that all she did?
A. Yes, that is all I remember.
Q@. What did Miss Murooka do?
A. She was there for only one year and she was
announcing news and commentaries and also intro-
ducing music.
@. What did Miss Furuya do?
A. She was helping Mrs. D’Aquino on the Zero
Hour. I recall that she was there for a short period.
Q. What did Mary Ishii do?
A. Toward the end of the war, Miss Ishii was
helping Miss 'oguri on the Zero Hour.
Q. What did Miss Furuya do?
A. She was anouncing news commentaries and
introducing music and also on the ‘*‘Women’s
our,”
Q. Do you know Mr. Ken Oki? A. Yes.
Q. What did he do?
A. He was on the staff of the Zero Hour.
Q. Do you know if he ever wrote script or
broadcast news or commentaries ?
A. While I was there I never saw him broad-
easting but I heard he had broadeasted before I
entered Radio ‘Tokyo.
@. Do you know if he wrote script?
A. I have seen him collect news and also type-
writing, so I presume he was preparing script.
@. Have you ever seen him in charge of prison-
ers of war? A. No, I have not.
Q. Do you know Nakamoto?
422 Iva Ikuko Toguri D’ Aquino
(Deposition of Masaaki Yanagi.)
Ae Wes, 1 do. |
Q. What did he do?
A. He was section chief on the ‘‘Zero Hour.”’
Q. Do you know whether or not he wrote script?
A. I saw him typing, but I do not know whether
he was preparing script or not.
Do you know Major Cousens?
Yes, I do.
Who was he?
He was a prisoner of war at Radio Tokyo.
What did he do at Radio Tokyo?
He was training the English announcers.
Did you ever see him train any English an-
nouncer ? A. No, I have not.
Q. Do you know a man named Ken Ishii?
A. Yes.
Q. Where did you meet him?
A. I entered Radio Tokyo the same time that
he did.
Q. Was he at Radio Tokyo continuously from
the time you entered until the end of the war? [6]
A. No.
Q. Where was he?
A. JI think he was called to the Japanese Army;
I don’t know the exact date, but I think for a pe-
riod of about one year.
Q. Do you know Captain Ince? A. Yes.
Q. Who was he?
A. He was also a prisoner of war.
Q. What did he do at Radio Tokyo?
OrPOrOrO
vs. Umted States of America 423
(Deposition of Masaaki Yanagi. )
A. I don’t know exactly.
Q. What did Ishii do?
A. He was an English announcer, also, and he
broadcast commentaries and introduced music.
Q. Do you know what the Kempei-tai organiza-
tion is? A. Yes.
@. Did they wear uniforms in and around Radio
Tokyo?
A. I heard they were there, but I never saw
them personally.
Q. They never bother you, did they?
A. No.
(). For what reason?
Mr. De Wolfe: I object to that as incompetent,
calling for the conclusion, hearsay.
The Court: What reason they did not bother
her?
Mr. Collins: Yes.
The Court: Objection sustained.
(A. I was also in the Japanese Army and I had
good knowledge of Japanese and I think that was
the main reason why I wasn’t bothered by the
Kempei-tai. )
Q. Do you know of an occasion when the
Kempei-tai arrested certain people who were con-
nected with Radio Tokyo? A. Yes, I do.
Q. Who were they?
A. Bucky Harris; another Mr. Miyata and Miss
Hayakawa. I don’t know whether she was ar-
rested or not, but she was being looked for.
424 Iva Ikuko Toguri D’ Aquino
(Deposition of Masaaki Yanagi.)
Q. As a matter of fact, you forewarned her, is
that correct? [7]
A. Yes; the Section Chief warned her it was
advisable to leave for the country because the
Kempei-tai were looking for her, and I also warned
her that it was advisable for her to leave for the
country.
Q. Why was Miyata arrested by the Kempei-tai,
if you know?
A. Mr. Miyata was called by the Kempei-tai be-
cause he had a New Year’s party at his home and
at this party some of the persons danced there.
Q. What kind of dancing was that?
A. It was American style dancing.
Q. Incidentally were the people in Japan dur-
ing the war permitted to speak English on the
street ?
A. I don’t know of any law prohibiting it, but
I have knowledge of occasions where people were
ealled by the Kempei-tai or questioned by them be-
eause they spoke English on the street or trains.
Q. Was the American game of baseball per-
mitted in Japan during the war?
A. No, that was also stopped by the Japanese
Government.
@. Do you know whether or not the Nisei had a
hard time in Japan during the war?
Mr. De Wolfe: Just a moment, Mr. Tamba.
Object to that as calling for a conclusion, too specu-
lative, conjectural, incompetent.
us. Umted States of America 425
(Deposition of Masaaki Yanagi.)
Mr. Collins: I think that this matter goes to
one of the very issues involved in this case.
Mr. De Wolfe: What is a hard time, sir?
Mr. Collins: Well, following the next question
it is directly related to that. Following that is the
answer, as to whether they did or did not have a
hard time, I mean, we have no objection to that
being stricken out.
The Court: Let it go out.
(A. Yes, they did have a hard time. )
Q. In what way. Will you describe some of the
difficulties ?
Mr. De Wolfe: Object to that as incompetent,
calling for a conclusion and
Mr. Collins: Well——
Mr. De Wolfe: And I think the answer itself
discloses at least in part that it is based on hearsay
and conclusions, speculative; conjectural.
Mr. Collins: Well, it would be a matter within
the personal knowledge of the witness.
The Court: Read the question and answer, and
J will instruct the jury if it should not go in.
Mr. Collins: The question was, ‘‘Do you know
whether or not the Nisei had a hard time in Japan
during the war?’’ ‘‘Answer. Yes, they did have
a hard time,’’ and then the question: ‘‘In what
way? Will you describe some of the difficulties ?”’’
and answer, “The main reason was, they ordered
them to be naturalized as Japanese and that was
because they wanted to call them for the army, and
426 Iva Ikuko Toguri D’ Aquino
(Deposition of Masaaki Yanagi.)
there were cases where some of the men after they
became Japanese citizns were called to the army.”’
Mr. De Wolfe: Move that be stricken on the
ground it is hearsay and calls for a conclusion;
speculative and conjectural.
Mr. Collins: It is a matter within the personal
knowledge of the witness as to the existing condi-
tions.
Mr. De Wolfe: It does not say it was; some of
it must have come from hearsay, what somebody
else thought, the reason for something else.
The Court: The Court is prepared to rule now.
The objection will be sustained; let it go out and
let the jury disregard it.
(A. ‘The main reason was that they wanted them
to be naturalized as Japanese and that was because
they wanted to call them for the army and there
were cases where some of the men after they be-
came Japanese citizens were called to the army.)
@. Were the Nisei compelled to register?
A. They were requested to register.
Q. Do you know why Bucky Harris was appre-
hended by the Kempei-tai?
A. I don’t know exactly, but I heard talk
about it. [8]
Cross-Examination
By Mr. Story:
Q. How many women regularly participated in
the Zero Hour?
A. Regularly just Miss Toguri.
vs. United States of America 427
(Deposition of Masaaki Yanagi.)
Q. The other people you mentioned as being on
the Zero Hour program were substituting for Miss
Toguri?
A. Yes. Mary Ishii and Miss Furuya were with
Miss Toguri for a short period of time. They were
not regularly there, but they were there at the same
time.
Q. What were they doing there while Miss
Toguri was there? A. I don’t exactly know.
@. They weren’t participating in the program?
A. No, I don’t think so.
Q. How many times did you actually observe the
Zero Hour program when it was being broadcast
in the studio?
A. Three or four times and that was in the
monitor’s room.
@. You mention this party where they were
dancing on New Year’s Eve and as a result one of
the persons there was arrested by the Kempei-tai;
is that correct?
A. It was not on New Year’s Eve, but it was
at New Year’s time, and it was not during the party
but a few days later that he was called by the
Kempei-tai.
Q@. Was Miss Toguri at this party?
A. No, she wasn’t.
@. What name did Miss Toguri use when she
was broadcasting on the Zero Hour program?
~. “OPphah Ann.”
Q. Did Miss Toguri ever use the name ‘‘Ann”’
428 Iva Ikuko Toguri D’ Aquino
(Deposition of Masaaki Yanagi.)
to your knowledge in addition to ‘‘Orphan Ann’’?
A. I only remember ‘‘Orphan Ann.”’
Q. In these broadcasts when you observed Miss
Toguri broadeast, did you ever hear her refer to
the American soldiers as ‘‘Orphans of the Pa-
cific’’?
Mr. Collins: JI submit, if Your Honor please,
that is calling for the opinion and conclusion of the
witness. The testimony was that she did not ob-
serve the broadcast. The testimony of the witness
was that she did not observe any broadcasts.
The Court: She was there.
Mr. Collins: No foundation has been laid. She
had
The Court: The testimony, as I followed it
Mr. De Wolfe: Right up above, sir.
The Court: She was in the monitor’s room.
Mr. De Wolfe: Yes. Right above, ‘‘How many
times did you actually observe the Zero Hour pro-
gram when it was being broadcast in the studio?’’
‘‘Answer: Three or four times and that was in the
monitor’s room.
Mr. Collins: I.may be in error, the monitor’s
room might be in the adjoining room. I withdraw
my objection.
The Court: Proceed, gentlemen. [9]
A. Yes.
Q. Was it generally known at the radio station
that Miss Toguri’s part in the Zero Hour program
vs. United States of America 429
(Deposition of Masaaki Yanagi. )
was for the purpose of attracting listeners among
the soldiers in the Southwest Pacific ?
A. Yes, I think the reason they had a girl an-
nouncer there was to attract attention of the
listeners.
Mr. Tamba: It was also true that the purpose
of having other girl announcers was to attract at-
tention, is that correct?
A. Yes.
, /s/ MASAAKI YANAGI. [10]
Japan,
City of Tokyo,
American Consular Service—ss.
I do solemnly swear that I will truly and im-
partially take down in notes and faithfully tran-
scribe the testimony of Masaaki Yanagi, a witness
now to be examined. So help me God.
/s/ IRENE CULLINGTON.
Subscribed and sworn to before me this twenty-
first day of April, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[American Consular Service Seal.]
Service No. 599a; Tariff No. 38; No fee pre-
seribed.
430 Iva Ikuko Togurt D’ Aquino
Japan,
City of Tokyo,
American Consular Service—ss.
CERTIFICATE
I, Thomas W. Ainsworth, Vice Consul of the
United States of America in and for Tokyo, Japan,
duly commissioned and qualified, acting under the
authority of a certain stipulation for taking oral
designations abroad, and upon order of the United
States District Court, made and entered March 22,
1949, in the Matter of United States of America,
Plaintiff, vs. Iva Ikuko Toguri D’Aquino, Defend-
ant, pending in the Southern Division of the United
States District Court, for the Northern District
of California, and at issue between United States
of America vs. Iva Ikuko Toguri D’Aquino, do
hereby certify that in pursuance of the aforesaid
stipulation and court order and at the request of
Theodore Tamba, counsel for the defendant Iva
Ikuko Toguri D’Aquino, I examined Masaaki
Yanagi, at my office in Room 335, Mitsui Main Bank
Building, Tokyo, Japan, on the twenty-first day of
April, A.D. 1949, and that the said witness being ~
to me personally known and known to me to be the
same person named and described in the interroga-
tories, being by me first sworn to testify the truth,
the whole truth, and nothing but the truth in an-
swer to the several interrogatories and cross-inter-
rogatories in the cause in which the aforesaid stipu-
lation, court order, and request for deposition
issued, his evidence was taken down and transcribed
vs. Umted States of America 431
under my direction by Irene Cullington, a stenogra-
pher, who was by me first duly sworn truly and
impartially to take down in notes and faithfully
transcribe the testimony of the said witness Masaaki
Yanagi, and after having been read over and ecor-
rected by him, was subscribed by him in my pres-
ence; and I further certify that I am not counsel
or kin to any of the parties to this cause or in any
manner interested in the result thereof.
In witness whereof, I have hereunto set my hand
and seal of office at Tokyo, Japan, this fifth day of
May, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[American Consular Service Seal.]
Service No. 810; Tariff No. 38; No fee prescribed.
[Endorsed]: Filed Aug. 24, 1949.
432 Iva Ikuko Togurt D’ Aquino
In the Southern Division of the United States
District Court for the Northern District of
California
No. 31712 R
UNITED STATES OF AMERICA,
Plaintiff,
VS.
IVA IKUKO TOGURI D’AQUINO,
Defendant.
DEPOSITION OF GEORGE OZASA
Deposition of George Ozasa, taken before me,
Thomas W. Ainsworth, Vice Consul of the United
States of America, in Mitsui Main Bank Building,
Room 335, in Tokyo, Japan, under the authority of
a certain stipulation for taking oral designations
abroad, and upon order of the United States Dis-
trict Court, made and entered March 22, 1949, in
the Matter of the United States of America vs. Iva
Ikuko Toguri D’Aquino, pending in the Southern
Division of the United States District Court, for
the Northern District of California, and at issue be-
tween the United States of America vs. Iva Ikuko
Toguri D’Aquino.
Lhe plaintiff appearing by Frank J. Hennessy,
United States District Attorney; Thomas DeWolfe,
Special Assistant to the Attorney General, and Noel
Story, Special Assistant to the Attorney General,
and the defendant, appearing by Wayne N. Collins
and Theodore 'l'amba.
vs. United States of America 433
The said interrogatories and answers of the wit-
ness thereto were taken stenographically by Irene
Cullington and were then transcribed by her under
my direction, and the said transcription being there-
after read over correctly to said witness by me
and then signed by said witness 1n my presence.
It is Stipulated that all objections of each of the
parties hereto, including the objections to the form
of the questions propounded to the witness and to
the relevancy, materiality and competency thereof,
and the defendant’s objections to the use of the
deposition, or any part of the deposition, by plain-
tiff, on the plaintiff’s case in chief, shall be reserved
to the time of trial in this cause.
GEORGE OZASA
of Tokyo, employed by Broadcasting Corporation
of Japan, of lawful age, being by me duly sworn,
deposes and says:
Direct Examination
By Mr. Tamba:
What is your full name?
George Ozasa.
Where do you reside?
Tokyo Ota Ku Magome Higashi 4-33.
What is your present occupation or business ?
I am now working for Broadcasting Cor-
poration of Japan in the Planning Department,
Music Section.
@. Where were you born?
>OPOPO
434 Iva Ikuko Toguri D’ Aquino
(Deposition of George Ozasa.)
A. Salt Lake City.
Q. When were you born?
A. June 23, 1919.
Q. Did you receive any formal education in the
United States?
A. I had my primary and high school education
in Salt Lake City and Los Angeles.
Q. Did you attend any university in the United
States ?
A. Yes, for year at University of Penn. [2*]
Q. When did you come to Japan?
A. I first came in 1934, after I graduated from
High School. 2
Q. Did you return to the States after that?
A. Yes, in 1939.
Q. I assume after returning to the United
States, you returned to Japan again?
A. Yes, in 1940.
Q. You are now a citizen and national of the
empire of Japan? A. Yes.
@. When and under what circumstances did you
change your citizenship ?
A. I changed my citizenship in the early part of
1942, because it was impossible at that time to secure
any job and I had no choice but to become a Jap-
anese citizen at that time if I wanted to earn my
living in Japan. I entered the Overseas Depart-
ment of Radio Tokyo in 1942.
@. In other words, it was impossible for you
*Page numbering appearing at bottom of page of original
Reporter’s Transcript.
vs. United States of America 435
(Deposition of George Ozasa.)
to live here unless you became a Japanese Na-
tional ? Bn Yes
@. Were the American citizens of Japanese an-
cestry having a difficult time in Japan during the
war securing employment?
Mr. De Wolfe: I object to that as immaterial and
too remote.
The Court: The objection is sustained.
Mr. Collins: I might direct Your Honor’s at-
tention to the fact that in connection with that
objection, the answer relates directly to the de-
fendant’s procurement of employment at Radio
Tokyo as one of the Nisei in Japan.
The Court: The Court has ruled. You may pro-
céed.
(A. When the war broke out we were all more
or. less asked to concentrate in one place and those
who had a special talent, such as writing, they were
more or less assigned to various jobs and as I had
taken up journalism at school, they asked me to
work for Radio Tokyo. However, to work for Radio
Tokyo one had to give up his American citizenship
and become a Japanese subject. )
Q. Do you know what the organization called
the Kempei-tai was? _
A. Yes, it was sort of military police, but its
Job was much larger than that and they had prac-
tical supervision over all civilians and over the
daily lives of people in J ae [3] during the war
period.
436 Iva Ikuko Toguri D’ Aquino
(Deposition of George Ozasa. )
Q. Do you know of any Kempei-tai being around
Radio Tokyo?
A. Yes, quite a few at all times at Radio Tokyo
and another thing, there were many people who
were assigned by the Kempei-tai to become part
time employees of Radio Tokyo, but they were
actually on the Kempei-tai payroll but in name they
were employees of Radio Tokyo.
Q. Do you know a person by the name of Iva
Toeuri, also known as Iva D’Aquino?
A. Yes, she was a part time employee of Radio
Tokyo and she used to announced for the program
known as the ‘‘Zero Hour.”’
Q. Do you recall an occasion when the Zero
Hour program was interrupted by a flash news
bulletin announcing the fall of Saipan?
A. Yes.
Q. What happened after that flash news was
announced ?
A. The flash news came in about five minutes
before the end of the broadcast and after that the
record ‘‘Stars and Stripes’’ was played and _ be-
cause of that the Kempei-tai had us all up for
questioning and we were questioned as to why that
certain record was played at that time. Another
thing, the Kempei-tai actually thought we had
played the ‘‘Star Spangled Banner”’ after this news
flash on the fall of Saipan, but we proved to the
Kempei-tai that the record played was ‘‘Stars and
Stripes’? and not the ‘‘Star Spangled Banner’’ be-
vs. Umted States of America 437
(Deposition of George Ozasa. )
cause we did not have that record in the library at
that time. This playing of the ‘‘Stars and Stripes’’
became quite a big problem and I was called by the
IXempei-tai three or four times.
Q@. Were you detained by the Kempei-tai for
that?
A. I was called up on three different occasions
and they asked me various questions as to why we
had played such and such a record at that time and
who was responsible, and at that [4] time Mr. Reyes
and Miss Toguri was called before the Kempei-tai
and questioned concerning this program.
Q. Who was in the radio broadcasting room
when that record was played?
Mr. Reyes and Miss Toguri.
Where were you?
In the control room.
Was anyone else in the control room?
The engineer was.
Was any other member of the east of the
Zero Hour present at that time?
A. No; on that day the Zero Hour was having
a party and the only two people in the studio at
that time were Reyes and Miss Toguri.
Q. No other member of the Zero Hour program
was there ? ua. No:
Q. Were persons unconnected with the Zero
Hour program ever allowed in the broadcasting
room ?
A. No, that was strictly prohibited.
Ze 2 Pa =
438 Iva Ikuko Togurt D’ Aquino
(Deposition of George Ozasa. )
Q. You say, no one else was allowed?
A. No. Only employees directly connected with
the Zero Hour program were. allowed. I used to
pinch hit for studio people.
Q. What kind of a program was the — Hour
program, if you recall?
A. It was an hour program—sort of a variety
type of program, which used to feature classical
music, sweet jazz music and hot swing music with
commentaries and news items sandwiched in be-
tween.
Q. Was that program one that could be enjoyed
by. anyone who did not have a good knowledge of
English ?
A. This program acral to carry quite a bit of
slang and was [5] a fast moving program and for
an ordinary Japanese National or person who knew
little English, it would have. been impossible for
that person to pick up and understand that pro-
gram.
Q. Do you know waoUbeE or not Miss Toguri was
particularly friendly with the Japanese people
around Radio Tokyo?
A. She was employed in the capacity of part .
time employee at Radio Tokyo. She used to come
in for Zero Hour and go out at the end of it and
very few people knew her or had speaking acquaint-
ance with her outside the people directly connected
with the Zero Hour, and even people on the Zero
Hour knew very little about her, because she used
vs. United States of America 439
(Deposition of George Ozasa. )
to come in for her broadcast and as soon as it was
over, she would leave.
@. Did you ever have occasion to notice her
associating with prisoners of war?
A. She used to work directly with the Aus-
tralian, Mr. Cousens, and Mr. Ince and Mr. Reyes,
who were directly connected as script writers with
the Zero Hour.
Q. Would it be a fair statement to say that she
appeared to be very friendly to prisoners of war?
A. Yes, I would say more friendly than to Jap-
anese Nationals.
@. Who else was on the Zero Hour program
, besides Miss Toguri and Mr. Reyes.
A. Mr. Mitsushio, head of the Zero Hour
Department, and Mr. Oki and Mr. Moriyama, and
then there were Ken Ishii and Miss Ishii and Miss
Furuya. They were the people outside of the two
or three directly connected with the Zero Hour.
The Zero Hour was an entire staff by itself com-
posed of about ten to twelve people and they worked
entirely apart from the rest of Radio Tokyo.
Q. How many women were on that hour? [6]
A. Altogether there were four women connected
with this program. One, Miss Hayakawa, who was
connected with the program during its initial stages,
used to pinch hit for Iva Toguri when Iva was out
in the early part of 1944.
Q. Do you know what became of the records of
employment of Radio Tokyo?
440 Iva Ikuko Togurt D’ Aquino
(Deposition of George Ozasa.)
A. All records written and recorded of Radio
Tokyo were destroyed at the termination of the war
by orders of the Army Department.
Q. Do you know what became of the records of
employment of Radio Tokyo?
A. They were burned or destroyed. We were
specifically ordered to burn any records or scripts
that we might have at home.
Q. Was a record made of the Zero Hour broad-
east?
A. No record was ever made of the Zero Hour.
Q. Can you tell us when the severe bombing
occurred in this area?
A. The bombing started in March, 1945.
Q. What happened to the Zero Hour at that
time ?
A. It used to go on but with a very reduced
staff and Iva was very seldom present. |
Q. Do you know whether or not she was absent
from her employment during any period of time?
A. After the heavy bombing started she was ab-
sent for quite a while and in the early part of 1944
she was absent for quite a period of time and about
two or three weeks before the war ended she had
already quit Radio Tokyo. She was a part time
employee and I do not think they have any definite
record of her being employed as a member of Radio
Tokyo, so whether or not they required a resigna-
tion, I am not sure. Regular members were not
allowed to resign.
vs. United States of America 441
(Deposition of George Ozasa. )
Q. Was this program of Zero Hour censored?
A. Yes, it was censored by four different depart-
ments—the Army Department; the Navy Depart-
ment; the Department of Communications; and the
Board of Information.
Q. Will you tell us what Miss Toguri did?
A. She used to announce parts that had to do
with swing music on the Zero Hour.
Q. Did she announce this by scripts?
A. Scripts that were prepared for her by Mr.
Cousens or Mr. Ince.
Q. Do you know if Iva Toguri ever prepared
any of her own scripts?
A. I personally have never seen her prepare her
script. J have seen her many times go over script
that Mr. Cousens wrote.
Q. Did any other women besides Miss Toguri
broadcast introductions ?
A. Miss Ishii and Miss Furuya. Miss Ishii used
to broadcast the classic type of music and Miss
Furuya broadcast sweet music.
@. Is Miss Furuya now Mrs. Oki?
1 NSE
Q. Do you remember the theme song of Zero
Hour? A. ‘‘Strike up the Band.’’
Q. Do you know a person by the name of Ruth
Hayakawa?
A. She was a regular employee of Radio Tokyo.
She was an announcer.
@. Did she take part in the Zero Hour?
442 Iva Ikuko Togurt D’ Aquino
(Deposition of George Ozasa.)
A. Jn 1944 when Miss Toguri was out, Ruth used
to pinch hit for her for several weeks.
Q. Do you know anything about a program called
the ‘‘German Hour’’?
A. Yes, it was a program edited and put on by
the German Embassy, prepared for use by Japanese
announcers.
Q. What hour of the day did that puie
go on? [8]
A. On the European network it went on at one
time from 1:00, to 1:30.
Q. Was the time ever changed?
A. I believe at one time it was changed to six
in the evening.
Q. Were any women on that program?
A. Yes, Miss Matsunaga.
@. Will you describe her?
A. She was rather round faced and at times she
wore pigtails and her appearance was very similar to
Miss Toguri’s. Her voice resembled Miss Toguri’s
in the way that she used to use quite a bit of Ameri-
can slang on the program and her voice registered
on the air rather husky and corny, the way Miss
Toguri’s used to register. I would say much of her
scripts resembled Zero Hour scripts very much.
She used to use records which were brought to the
station by the German Embassy, that is, the jazz
records.
Q. Was the German Hour program broadeast
in English ? A. Wes
vs. United States of America 443
~
(Deposition of George Ozasa. )
Q. Have you ever heard of a person by the name
of ‘‘Brundage’’?
A. Yes, he is a newspaper reporter, although I
never met him personally, but I have heard his name.
Q. Mr. Ozasa, I invite your attention to a state-
ment made by Mr. Brundage to certain parties,
whom I do not wish to name at this time, in sub-
stance, as follows: ‘‘Miss Toguri took over the
writing of her own script. Wallace Ince and the
Australian had been doing them. They continued
on the program as announcers, advisors, ete., but
I announced and played the music and I did the
propaganda job, too. Some of the propaganda was
pretty tough. You can go all out and say it was
pretty: dirty. I only not made reference about what
Wives and sweethearts of American troops were
doing at home while they were giving their blood
and sweat in the mud, heat and rain, and I made
flat statements about their alleged misconduct.’ I
will ask you if that statement is true or false?
Mr. De Wolfe: Objected to as not proper im-
peachment. Brundage was not called by either
party. Itis incompetent, irrelevant and immaterial.
The Court: Objection sustained.
(A. I would eall that statement false on two
points. One point, her scripts were written by Mr.
Cousens and Mr. Ince and she never wrote any of
her scripts herself, and another point on that is
that compared to some of the news items and com-
ments that used to go over the radio at that time,
444 Iva Ikuko Toguri D’ Aquino
(Deposition of George Ozasa.)
the Zero Hour was kept pretty clean. The contents
of the Zero Hour was kept very clean compared to
some news items and commentaries that were used
during that period.)
Q. Were any so-called dirty statements or prop-
aganda made over the broadcast from Radio Tokyo?
Mr. De Wolfe: I object to that question as being
too general and also involved in the same matter as
the last question to which objection was sustained.
It is not proper impeachment.
The Court: The objection will be overruled. He
may answer. |
A. In the matter of news items and commen-
taries, quite a few were, but the Zero Hour was
aimed principally at the GI’s and in order to stim-
ulate interest in that program, the program was
kept on a pretty clean level. That I can say because
I went through many scripts myself and I seldom
saw any statements that could be termed as dirty.
Q. Mr. Brundage also made another statement
in which he said that Miss Toguri stated to him that
she was the only woman to ever broadcast over the
Zero Hour program. Is that statement true or false?
Mr. De Wolfe: I object to that as incompetent,
irrelevant and immaterial and without foundation.
The Court: The objection will be sustained.
(A. That statement is false because, as I men-
tioned before, there were three other girls connected
with the Zero Hour. Each girl had a definite part
on the Zero Hour. I might add that each person
vs. Umted States of America 445
(Deposition of George Ozasa. )
on the Zero Hour program had a definite part; one
person acted as master of ceremonies, usually Mr.
Oki and Moriyama, and another person who just
read news, usually Mr. Oki, and there was another
person who read commentaries, usually Mr.
Mitsushio. [10] At times they used to have short
skits and each girl had a definite part. Miss Ishii
played ten minutes classical music; Miss Furuya
played ten minutes of sweet music and Miss Toguri
played ten to fifteen minutes of swing music.)
Q. Did Miss Toguri use any name in announcing ?
A. She often used the name of ‘‘Orphan Ann.”’
This name was given to her by Mr. Cousens. When
this program started they wanted to know what
name to go by and Mr. Cousens thought that Ann
was short for announcer and they took that name.
Q. Mr. Ozasa, you have talked to Mr. Tillman of
the FBI about this case? A. Yes, I have.
Q. That was before you talked to me the other
night and this morning, is that correct?
A. Yes.
Q. That is all.
Cross Examination
By Mr. Story:
Q. Mr. Ozasa, you have testified that you
changed your citizenship from American to Japa-
nese in 1942, is that correct?
A. After the war started.
446 Iva Ikuko Togurt D’ Aquino
(Deposition of George Ozasa.)
Q. Approximately when in 1942 did you change
your citizenship ? A. Early in 1942.
Q. What were you doing prior to the time you
changed citizenship ?
A. I was attending college in Japan—College
of Foreign Languages.
Q. You stated that in order to work at Radio
Tokyo one had to have Japanese citizenship, is that
correct ?
Mr. De Wolfe: I ask that this question and an-
swer go out because the corresponding matter on
direct examination went. out. The next two ques-
tions should go out with the answers because they
went out on direct examination.
The Court: Is there any objection? |
Mr. Collins: Yes, there is objection to that, if
Your Honor please, because the question is pro-
pounded here ‘‘You said that in order to work at
Radio Tokyo one had to have Japanese citizenship ?’’
It is still pertinent to the issue.
Mr. De Wolfe: The identical matter went out
on direct examination.
Mr. Collins: J think that it is because of the
method in which the question had been propounded.
Mr. De Wolfe: The testimony went out on direct
examination.
The Court: You must get a record. I must rule.
Mr. De Wolfe: On page 3 of this deposition,
lines 26 to 28, that identical point went out on our
objection.
vs. United States of America 447
(Deposition of George Ozasa.)
Mr. Collins: That is the only place it was testi-
fied to on direct, and that is what prompted this
cross-examination. The question is propounded, if
Your Honor please, on the direct examination on
page 3: ‘Were the American citizens of Japanese
ancestry having a difficult time during the war se-
curing employment?’’ You sustained an objection,
but the present question is propounded on the cross-
examination as follows: ‘‘ You stated that in order
to work at Radio Tokyo one had to have Japanese
eltizenship. Is that correct ?”’
Mr. De Wolfe: Yes, but his answer to the ques-
tion which counsel propounded on direct examina-
tion, the last three lines of it, dealt with this subject,
work at Radio Tokyo and American citizenship, but
whether or not American citizenship was an obstacle
to working at Radio Tokyo that question and answer
were stricken, and therefore this cross-examination
on that identical point is not proper.
The Court: You will have to proceed with ques-
tion and answer and I will rule.
Mr. Tamba: Which one, Mr. De Wolfe?
Mr. De Wolfe: Page 11, line 26;
““@. You state that in order to work at Radio
Tokyo one had to have Japanese citizenship, is that
correct ?”’
Mr. De Wolfe: I move that that be stricken. We
object to it on the ground that the objection to the
identical matter was sustained on direct examination.
The Court: Submitted?
448 Iva Ikuko Toguri D’ Aquino
(Deposition of George Ozasa.)
Mr. Collins: Yes, Your Honor.
The Court: Objection is sustained.
Mr. De Wolfe: The next question, ‘‘Is that state-
ment true?’’ The same objection for the same rea-
son.
The Court: Same ruling. The objection will be
sustained.
(A. Yes.)
Q. Is that statement true? (A. Yes.)
Q. There were no foreign nationals working at
Radio Tokyo? [11]
A. Not of Japanese blood.
Q. You are telling us that if you were of Japa-
nese blood you could not work at Radio Tokyo with-
out being a Japanese National?
A. Yes, as a full time employee. There were
quite a few foreigners working for Radio Tokyo all
employed as part time employees. There was a
definite difference between full time and part time
employees.
Q. Could a part time employee of Japanese
blood but of other citizenship be employed at Radio
Tokyo?
A. So far as I know, no. In the case of Miss
Toguri, she was not employed by Radio Tokyo; she
was forced by the Army Department to work for
Radio Tokyo; they forced her upon Radio Tokyo.
q. Are you testifying as to something you know
of your own knowledge or as to something you have
heard or presume ?
us. United States of America 449
(Deposition of George Ozasa. )
Mr. Tamba: You mean in reference to Miss
Toguri?
Mr. Story: Yes.
Q. Mr. Ozasa, do you know the meaning of an
oath? A. Yes.
Q. Do you know you are subject to punishment
for not telling the truth? A. Wes:
Q. We only want you to testify as to what you
know of your own knowledge; not what you have
heard from someone else. Now, of your own know]l-
edge, do you know that a part time employee of
Radio Tokyo of Japanese blood had to be a Japanese
citizen in order to work for the radio station?
A. Yes, I do.
Q. You personally know that each and every per-
son of Japanese blood that worked, either part time
or full time for Radio Tokyo was a Japanese
National? [12]
A. Yes.
Q. My. Ozasa, you have testified that there were
all kinds of Kempei-tai at Radio Tokyo, is that
correct ?
A. What I meant was that people who were not
actually Kempei-tai but were employed by the
Kempei-tai to give information on what was going
on at Radio Tokyo.
Q. Is that what you testify to? A. Yes.
Q. Name some of these people who belonged to
the Kempei-tai at the radio station.
A. Mr. Uno was connected with the Kempei-tai.
450 Iva Ikuko Toguri D’ Aquino
(Deposition of George Ozasa.)
Q. Do you know of your own knowledge that
he was employed and paid by the Kempei-tai?
A. Yes, I do.
Q. Do you know the names of any other Kempei-
tai at the radio station?
A. I ean’t give you definite names.
Q. Then you don’t know anybody connected with
the Kempei-tai but Mr. Uno, is that correct?
A. Yes. After the bombings started there were
Kempei-tai who made periodical appearances at
Radio Tokyo and I, myself, was checked several
times by members of the Kempei-tai. I definitely
cannot report the names of the fellows. That we
were watched I definitely know, because my personal
things in the place where I used to live during the
war was searched several times.
Q. You have testified that after the fall of Sai-
pan the ‘‘Stars and Stripes’’ was played on the
Zero Hour?
A. Yes. The Zero Hour was an hour program
and just before the end of the Zero Hour program
the flash news on the fall of Saipan came in and
the record that played was the ‘‘Fair of the Fair-
est’? and it was turned over and the ‘‘Stars and
Stripes’’ [13] played until the end of the program,
which was at seven o’clock. That record ‘‘Stars
and Stripes’? which was played was on the other
side of ‘‘Fair of the Fairest’’ and the Kempei-tai
thought that we had played the “Star Spangled
Banner,’’ and I proved to them that we did not play
vs. United States of America 451
(Deposition of George Ozasa. )
the ‘“‘Star Spangled Banner’’ because we did not
have the record.
Q. Did Miss Toguri have anything to do with
the playing of this record?
A. She was in the studio with Mr. Reyes.
Q. Tell us what was done.
A. Mr. Reyes was at the turn table and he turned
it over and since she was in the studio with Mr.
Reyes I do not see that she had a definite part in
the thing.
@. Who actually physically played the record-
ing? A. Mr. Reyes.
Q. You have testified that Miss Toguri was ques-
tioned by the Kempei-tai after this incident. Were
you personally present when she was interviewed ?
A. No.
Q. Then of your own knowledge you do not
whether or not she was questioned by the Kempei-
tai?
A. Everybody concerned with the program was
questioned. We were all called in—one at a time.
Q. Were you present when she was questioned
by the Kempei-tai ? A. No.
Q. You have testified that Miss Toguri was
friendly with the prisoners of war at the radio sta-
tion and not necessarily friendly with the Japanese
Nationals, is that correct? A. Yes.
Q. What were these prisoners of war doing at
the radio station ?
A. Mr. Cousens used to write commentaries and
452 Iva I[kuko Toguri D’ Aquino
(Deposition of George Ozasa.)
acted as coach for news writers and announcers and
Mr. Ince acted in the same [14] capacity.
Q. Were these prisoners of war writing scripts
for Radio Tokyo? A. Yes.
Q. Were some of these prisoners of war broad-
easting propaganda for the Japanese radio ?
A. They had this program, which was called
Hi no Maru Hour, which was put on by the Army
Department and it was a half hour broadcast every
day.
Q. Were the prisoners of war broadcasting?
A. Yes.
Q. Mr. Ozasa, you have testified that Miss Toguri
was away from the radio station in 1944?
A. In the early part of 1944.
Q. How long was she away from the radio
station ?
A. I cannot definitely say, but I would say about
a month. That was when Ruth Hayakawa was pinch
hitting for her.
Q. You have testified that Miss Toguri was away
from the radio station in 1945, when was that?
A. Toward the end of the war— about three
weeks before the end of the war and from then she
did not come at all to the radio station and she
was on and off quite frequently in 1945.
Q. Is that the only time she was away from the
radio station in 1945 for an extended period of time?
A. As far as I know.: I, myself, very seldom
went to the Zero Hour rooms and there were times
vs. United States of America 453
(Deposition of George Ozasa. )
when I was busy with my own work and she may
have been absent but it did not come to my knowl-
edge.
Q. How many times a week was the Zero Hour
broadcast ? A. Every day of the week.
Q. Tell me approximately how many times you
were actually at the Zero Hour and observed the
broadcast of the Zero Hour. [15]
A. At the beginning of the Zero Hour program
J was there practically every day; roughly, about
15 or 16 days when I saw the whole program.
@. You have testified that four different women
had participated in the Zero Hour broadcast. Were
these persons substituting for Miss Toguri, or did
they have a regular portion of the Zero Hour pro-
gram daily?
A. Miss Hayakawa was substituting for Miss
Toguri, but the other two had a regular part in the
Zero Hour program.
Q. In other words, they appeared every day in
the program? A. Yes.
Q. What were the names of these persons?
A. Miss Ishii and Miss Furuya.
Q. Mr. Ozasa, tell us of your own knowledge as
to whom prepared the script for Miss Toguri?
Q. Of my own knowledge, I know that Mr.
Cousens prepared the seript.
Q. Have you actually seen Mr. Cousens prepare
the script?
494 Iva Ikuko Toguri D’ Aquino
(Deposition of George Ozasa.)
A. Yes. I saw Miss Toguri and Mr. Cousens go
over the scripts.
Q. Did Miss Toguri ever change the scripts?
A. I don’t know that. I saw them go over the
seripts together, and he would coach her on how to
stress this point or that point, but what was actually
in the seript I never saw; I only heard ‘it over the
broadcast.
Q. When did Major Cousens leave the Radio
Station? A. What do you mean?
@. Did Cousens remain at the radio station until
the end of the war?’
A. The early part of August.
Q. You are positive that Major Cousens re-
‘mained at the radio station and prepared scripts
for Miss Toguri up until August, 1945? [16]
A. Toward the end of the war, as I said, Miss
Toguri was not on the program any more in August.
°Q@. Give the date, approximately, when Miss
Toguri quit participating in the Zero Hour pro-
gram?
A. To my knowledge, about the middle of July.
Q. Major Cousens was still there at that time?
A. Yes; he was participating in the Zero Hour.
_Q. He was writing Miss Toguri’s scripts up until
July, 1945? A. So far as I know, he was.
Q. What was the purpose of Miss Toguri’s part
on the Zero Hour program ?
A. I would say that her part was to furnish
entertainment.
vs. United States of America 455
(Deposition of George Ozasa. )
@. Did you testify in your direct examination
that it was to draw listeners among the soldiers?
A. Yes.
@. You are telling us that Miss Toguri’s part
was to draw listeners ? A. Yes.
Q. Was there any propaganda on the Zero Hour
after Miss Toguri’s part on the program?
Mr. Collins: I submit, if Your Honor please,
that is calling for the opinion and conclusion of the
witness; improper cross-examination, incompetent,
irrelevant and immaterial.
Mr. DeWolfe: On direct examination my recol-
lection is that there is testimony, I think in part
over my objection, as to whether the program had
anything. further in it, or anything of a progaganda
nature. Those were the very words that I remem-
bered in the question propounded on direct exami-
nation.
Mr. Collins: My recollection is that it was
stricken.
Mr. DeWolfe: No sir, my objection to that was
overruled. | )
The Court: Read the question Mr. Reporter.
(Question read. )
The Court: It may be answered. Objection will
be overruled.
A. You mean in her part?
Q. After her part was over, was there any propa-
ganda following her part in the Zero Hour program ?
456 Iva Ikuko Togurt D’ Aquino
(Deposition of George Ozasa.)
A. I am not sure whether she went on in the
beginning or the end.
Q. Was there any propaganda at all broadcast
on that Zero Hour program?
Mr. Collins: I submit, if Your Honor please,
that is calling for the opinion and conclusion of the
witness; it 1s Improper cross-examination and it is
incompetent, irrelevant and immaterial.
The Court: Read the question.
(Question read. )
The Court: Objection will be overruled; he may
answer.
A. All news and commentaries read were proga-
ganda. |
@. When you were present in the studio and ob-
served Miss Toguri broadcast, did you ever hear
her make a remark such as this: ‘‘ Boneheads of the
Pacific, don’t you wish you were home by the fireside
or home with an ice cold drink or walking or driving
in the woods with your girl friend, [17] instead of
being in the foxholes or jungles fighting mosquitoes’’?
A. No, I did not. I heard her use the expression
‘*Boneheads,’’ but I never heard the other part.
Q. Younever heard her mention, ‘‘Don’t you wish
you were home by the fireside’’? A. No.
Q. Do you remember making a statement to Spe-
cial Agent Tillman of the FBI?
A. I spoke with him, yes.
Q. Did you tell Mr. Tillman at the time you spoke
to him that you heard Miss Toguri say, ‘‘ Boneheads
us. Umted States of America 457
(Deposition of George Ozasa.)
of the Pacific, don’t you wish you were home by the
fireside rather than fighting mosquitoes in the
jungles’’?
A. No, I never made that statement to him. I
made the expression ‘‘ Boneheads of the Pacific.” I
heard that several times on the air.
@. When did you talk to Mr. Tillman?
A. In January—I just saw him once or twice.
Q. Do you recall telling Mr. Tillman that the
purpose of the program was to make the American
soldiers in the Southwest Pacific homesick ?
Mr. Collins: I object to that on the ground that
it 1s Improper cross-examination; it is not proper
impeachment; no foundation has been laid; and it
is incompetent, irrelevant and immaterial.
The Court: Read the question.
(Question read.)
The Court: Objection will be overruled; he may
answer.
A. Yes.
Q@. Did Miss Toguri appear to be pleased with
her success as an announcer on the Zero Hour pro-
gram?
A. I didn’t know Miss Toguri well enough to
answer that question. I knew her by sight but I
was not on speaking terms with her.
@. Did you ever observe anything concerning
Miss Toguri which indicated an unwillingness to
participate in the radio broadcast ?
458 Iva Ikuko Togurt D’ Aquino
(Deposition of George Ozasa.)
A. If you could call the fact that she was not
on time for her broadeasts unwillingness to par-
ticipate in the program. [18] When she was sched-
uled on the first part of the program and she was
not on time, they would have to switch her part
to the end.
Q. My question was, did you ever observe any-
thing to indicate an unwillingness on her part to
participate in this radio broadeast ?
A. That is the only answer I could make. I did
not know her very well, as I very seldom spoke
to her.
Q. Do you reeall telling Mr. Tillman that you
never heard any comments that indicated that she
was unwilling to participate in the radio broadcast?
Mr. Collins: I object to that on the grounds that
it is calling for the opinion and conclusion of the
witness, would be hearsay and is not proper im-
peachment, no foundation has been laid, and it is
incompetent, irrelevant and immaterial.
The Court: The objection will be overruled.
Mr. Collins: And improper cross-examination.
A. No, I have never said anything lke that.
My only speaking acquaintance was to say ‘‘hello’’
or ‘‘good afternoon.”’
Q. I think that is all.
Re-direct Examination .
By Mr. Tamba:
Q. Mr. Ozasa, do you know the name of the
Kempei-tai who questioned you?
us. United States of America 459
(Testimony of George Ozasa.)
A. No, I don’t.
Q. How many different members of the Kempei-
tai questioned you?
A. As I recall there were several fellows around.
Q. Do you know the name of the Kempei-tai who
searched your home in your absence?
A. No. They never gave names.
Q. Regarding the actual playing of the records,
did Miss Toguri ever put a record on the machine
or was that done by someone else?
A. I don’t know if she ever acted in that capac-
ity of record playing.
@. But you know that she introduced records?
A. Yes.
* Q. Do you know whether or not Miss Toguri ever
became a Japanese citizen? [19]
A. I don’t know.
' Q. Did you ever see prisoners of war slapped ?
4S. Wo.
Q. Do you recall Mr. Cousens being absent from
the radio station on account of illness?
A. Yes. He was in the Juntendo Hospital. One
of the hospitals right near the Apartments.
Q. How long was he in that hospital, if you
know? A. I don’t know.
@. Can you give us an estimate?
A. ‘T'wo or three weeks.
Q. Do you know what year that was?
A. No, I don’t know—end of 1943 or early 1944;
I am not sure.
460 Iva Ikuko Togurt D’ Aquino
(Testimony of George Ozasa.)
Q. Did you ever see Mr. Ince coach Miss Toguri?
A. Ihave seen him several times giving pointers
on announcing. He used to be the coach for all the
announcers.
Q. That is all.
Re-Cross-Examination
By Mr. Story:
Q. Do you know Mr. Philip D’Aquino ?
A. He is Miss Toguri’s husband. I recall seeing
him several times around the radio station, but who
he was I had no knowledge.
Q. Have you talked to Mr. D’Aquino since you
talked to Mr. Tillman in January of this year?
A. The first time I met Mr. D’Aquino was after
the war when I went to Mr. Tamba’s office.
Q. Did you talk to Mr. D’Aquino?
A. Mr. Tamba was there and Mr. Nakamura and
several others.
Q. Have you talked to Mr. D’Aquino alone?
A. No.
Q. At any time since you talked to Mr. Tillman?
A. No. [20]
Mr. Tamba: As a matter of fact, I introduced
you to Mr. D’Aquino, isn’t that a fact?
A. Yes.
Q. That is all. [21]
us. United States of America 461
Japan,
City of Tokyo,
American Consular Service—ss.
CERTIFICATE
I, Thomas W. Ainsworth, Vice Consul of the
United States of America in and for Tokyo, Japan,
duly commissioned and qualified, acting under the
authority of a certain stipulation for taking oral
designations abroard, and upon order of the United
States District Court, made and entered March 22,
1949, in the Matter of the United States of America,
Plaintiff, vs. Iva Ikuko Toguri D’Aquino, Defend-
ant, pending in the Southern Division of the United
States District Court, for the Northern District of
California, and at issue between United States of
America vs. Iva Ikuko Toguri D’Aquino, do hereby
certify that in pursuance of the aforesaid stipula-
tion and court order and at the request of Theodore
Tamba, Counsel for the defendant Iva Ikuko Toguri
D’Aquino I examined George Ozasa, at my office in
Room 330, Mitsui Main Bank Building, Tokyo,
Japan, on the twentieth day of April, A.D. 1949,
and that the said witness being to me personally
known and known to me to be the same person
named and described in the interrogatories, being
by me first sworn to testify the truth, the whole
truth, and nothing but the truth in answer to the
several interrogatories and cross-interrogatories in
the cause in which the aforesaid stipulation, court
order, and request for deposition issued, his evidence
462 Iva Ikuko Toguri D’ Aquino
was taken down and transcribed under my direction
by Irene Cullington, a stenographer who was by me
first duly sworn truly and impartially to take down
in notes and faithfully transcribe the testimony of
the said witness George Ozasa, and after having
been read over and corrected by him was subscribed
by him in my presence; and I further certify that
I am not counsel or kin to any of the parties to
this cause or in any manner interested in the result
thereof.
In witness whereof, I have hereunto set my hand
and seal of office at Tokyo, Japan, this fifth day
of May, A.D. 1949.
/s/ THOMAS W. AINSWORTH,
Vice Consul of the
United States of America.
[ American Consular Service Seal. ]
Service No. 806; Tariff No. 38; No fee prescribed.
[Endorsed]: Filed Aug. 25, 1949.
Live Music
Archive
Librivox
Free Audio
Metropolitan Museum
Cleveland
Museum of Art
Internet
Arcade
Console Living Room
Open Library
American
Libraries
TV News
Understanding
9/11